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New laws to recognise pregnancies lost as a result of crime
Criminal acts that lead to the loss of a woman’s pregnancy would face an additional three years in prison under proposed laws in NSW that would treat the death of a foetus as an aggravating factor of a crime.
Tony Zhang
The NSW government is seeking community views on a suite of reforms to improve recognition of the loss of an unborn child as a result of a third-party criminal act.
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Premier Gladys Berejiklian and Attorney-General Mark Speakman released an Exposure Draft Bill for public consultation.
“These reforms will acknowledge the heartbreaking loss experienced by many families,” Ms Berejiklian said.
“Given the sensitivity and complexity surrounding this issue, it is important to engage with the community, victims and experts so that we can achieve meaningful reform together.”
The Crimes Legislation (Offences Against Pregnant Women) Bill proposes the amendments to the Crimes Act 1900 to provide a specific circumstance of aggravation for offences committed against a pregnant woman, which causes the loss of an unborn child.
The maximum prison sentence for the offence will be increased by an additional three years, specifically recognising the pregnancy loss.
The reform also seeks to expand the eligibility for making a Victim Impact Statement to the immediate family members of a pregnant woman whose unborn child was lost and enabling family members to express the impact of the loss on them. The statements will be taken into account by the court when sentencing offenders.
The proposed changes would also allow the name of the child to be included in the formal criminal charge, allow close relatives to provide victim impact statements to the court and also allow families to receive funeral expenses where an unborn child is lost as a result of a car accident.
The NSW government stated an administrative payment scheme will also be developed to provide bereavement payments to families who lose an unborn child due to a criminal act. The scheme will ensure that families can access support services.
However, the proposed amendments do not affect existing laws on abortion.
The government stated that significantly, these reforms do not displace the centuries old ‘born alive rule’, an integral legal doctrine adhered to in all Australian jurisdictions and other Commonwealth countries, including Canada, New Zealand and the UK.
The rule provides that a child attains legal personhood, including the capacity to be the victim of a criminal offence independently of their mother, when they are born and take their first breath.
Mr Speakman said these reforms aimed to deliver meaningful recognition for grieving families, without undoing long standing legal principles.
“The government is seeking community views on proposals that aim to acknowledge the loss of victims and appropriately punish offenders,” he said.
“The proposed amendments to the Crimes Act 1900 recognise that the loss of a pregnancy falls into a unique, and especially serious, category of harm.”
The proposal follows years of debate about criminalising the destruction of a foetus following the stillbirth of NSW woman Brodie Donegan's daughter Zoe after Ms Donegan was hit by a drugged driver on Christmas Day 2009. The driver was sentenced to a minimum of nine months in prison.
