Zoe's Law

[David]

There's an interesting law being debated in NSW seeking to give limited 'personhood' rights to late-term foetuses.

http://www.theguardian.com/world/2013/sep/19/zoes-law-debate-nsw-abortion

The pro-choice lobby are claiming slippery slopes and getting their placards out, but on closer inspection it seems a cautious and well thought through proposal. The woman behind it explains the situation here:

http://www.sbs.com.au/news/article/2013/09/22/comment-busting-myths-around-zoes-law

[think positive]

Wow that's powerful, I cried, for the mother and for Zoe, may She rest in peace.

And I totally agree, can't believe it's not already the law to be honest, seams like common sense.

Yes most of the time I like to believe there is a higher power, but I have always been pro choice. Up to the point the blob becomes a baby. And once that point is reached it should work both ways. Protect the baby and also uphold that babies rights

In very special circumstances ( a friend was pregnant years ago, a much wanted child, late scans determined terrible problems that would have a major impact on quality of life for child and parents, not every one supported her decision, I did, not everyone could cope and that's fair enough, but better to pick it up earlier)

As for the law I think it's brilliant, Zoe deserves her justice.

Rip little one

Great article david

[stui magpie]

Having read the articles, I'd support that.

I'm pro choice but that seems to be well reasoned and limited legislation. The devil is always in the detail, the law of unintended consequences hovers like a spectre especially when you have people in official capacities with the jurisdiction to interpret legislation according to the wording and irrelevant of the intent. So for mine it needs to be very tightly worded to leave the element of jurisdictional interpretation as narrow as possible.

But in principle, I fully agree with it.

[Pies4shaw]

I think it is very important that the criminal law provide therapy for grieving parents. That's obviously the role of the State.

[David]

Is that all this is about, though? Do you really think this woman has campaigned for three years just so she can get a nice little decorative 'sorry for your loss' certificate?

[Pies4shaw]

Yes to your first question. As to your second, I neither know why "this woman" has campaigned for however long she has, nor do I care about her purpose. It's a proposed change to a criminal law. The proponents' motives are irrelevant.

[think positive]

Spoken like a robot, apologies to hal

[HAL]

Oh, you are a poet.

[David]

[HAL]

I'm sure she would like to hear about that.

[Pies4shaw]

Try this on for size: Say Zoe's mother is deeply depressed and decides to end her own life. She drives her car deliberately into a tree with the intention of killing herself. She fails to achieve her objective but she does manage to kill her unborn child. Is that to be manslaughter (assume, as is undoubtedly correct, that all other necessary elements of the crime are made out by the facts I have posited)? What about a mother-to-be who causes her unborn child a fatal injury by drinking too much or by taking drugs?

For me, "Be that as it may" doesn't come into it. The only question for the criminal law is how the perpetrator is to be dealt with. There is no reasonable basis for doing a "head count" for manslaughter charges in circumstances where the only sensible answer a sane person at the scene of the accident would give is that there was 1 injured pregnant woman in the car. The crime isn't more or less serious because the pregnant woman was "late term". Nor is it more serious if, for example, the woman is pregnant with "late term" quintuplets.

We all know that people shouldn't drive mini-vans when they are high on drugs - the question is how such people are to be charged when they cause injury and, if found guilty, sentenced. It makes the consequences of the crime worse for the victims if there were 5 injured pregnant women in the one vehicle who lost 10 "late term" twins between them. The relevant question for the criminal law, though, is what you want to do with the perpetrator. Presumably, unless one is driven by grief or retribution (or both), one doesn't want that driver sentenced on 10 counts of manslaughter and 5 of causing grievous bodily harm.

Thus, taking the view (as one must) that the perpetrator should not be dealt with in any significantly different way because one or more of the people in the other car happened to be pregnant, one is led back to the question of the point of the proposed change to the law. The criminal law is concerned with what society does with the perpetrator. That should not differ according to how many "unborn people" there might happen to be in the car.

It is, of course, different in the law of tort - where the object is compensation for injury, rather than punishment of a wrongdoer. But, even there, it is necessary for the child to survive birth in order to have standing as a plaintiff. If you are interested in engaging with the deeper debate, you will find some opposing views cogently expressed by Justices Kirby and Crennan in Harriton and Stephens: http://www.austlii.edu.au/cgi-bin/download.cgi/au/cases/cth/HCA/2006/15

You might also want to read Watt v Rama [1972] VR 353 and, most especially, Lynch v Lynch (1991) 25 NSWLR 411 and contemplate, among other things, how you would want the criminal law to deal with the drivers in those cases.

These are not new issues. It is, in my opinion, little more than hubris for Zoe's mum to think that she could wander in and sort it all out.

[HAL]

Maybe. I know one is between zero and two but I had no idea it was driven by grief or retribution or one doesn't want [he or she]that [he or she]driver sentenced on 10 counts of manslaughter and 5 of causing grievous bodily harm.

[think positive]

How does that joke about lawyers at the bottom of the sea go again?

And yes the mother should be held accountable, that goes for smoking, drinking, drug addicted mothers whatever. I'm sure the outclause that works so well in other situations would work for depression here too.

Nothing more heartbreaking than a baby with withdrawal symptoms

[David]

P4S, we already have instances of the child's death being recognised (and contributing to criminal charges) in cases such as this:

http://m.theage.com.au/victoria/solitary-mistake-woman-walks-from-court-after-fatal-uturn-crash-20130625-2otve.html

The anomaly here seems to be the fact that the infant lived for a short time after the emergency caesarean. One might well imagine that, had this woman been under the influence of drugs and a repeat offender (as in the Donegan case), she would have served time.

Clearly, the amount of people in the car is going to affect sentencing. If, while under the influence, you crash your truck into a tram carrying five mothers with newborn babies on their laps (or five quintuplets newborns each, if you like), you are going to be charged with ten (or, in the other case, thirty) counts of manslaughter. How is this so different?

The same would be the case for a mother who crashes her car with her newborn infant within or lets it die through neglect. Clearly, the crux of the matter is whether we can assign personhood/individual rights to late-term foetuses. Everything else follows from there.

[Pies4shaw]

I'm glad it's all so clear to you. Plainly, alternative input is not required and I've wasted my time thinking about these issues.