By Anna Walsh
After a horror car crash that killed a young woman heavily pregnant with twins last year in NSW,[i] an attempt was made to re-enliven debate on ‘Zoe’s Law’, a bill which sought to recognise the unborn child as a victim of crime when killed through an assault on the pregnant woman.[ii] The bill made an exception for ‘anything done in the course of a medical procedure’, and ‘anything done by or with the consent of the mother of the child in utero.’[iii] Whilst the first exception refers to abortion, the ambit of the second exception is unclear and raises an interesting issue about criminalising behaviour of pregnant women known to cause damage to the child in utero.
In this scenario, the woman has no intention of aborting the child. Content to be pregnant, she nevertheless persists in behaviour that will harm the child. Damaged at a time when the law does not afford them legal rights, the unborn child is in a quandary. However, protecting the child from harm involves infringing the pregnant woman’s autonomy to do as she pleases. Despite this, it could affect a measure of justice for child, as well as justice for the community, who will bear the financial costs associated with caring for a disabled child through the taxation system.
There are proven causal links between some forms of drug taking and severe disability in the child. The tragedy lies in the fact that injury may be preventable if she refrains from taking drugs. However, this simple solution is complicated by the nature of drug addiction, and its impact on free will. If addiction impacts her free will, then intervening to prevent harm to the unborn child does not restrain her autonomy. The nature and purpose of intervention would shift from being a form of punishment that expresses societal disapproval, to a form of care for both her and her unborn child.
No pregnant woman can provide the ‘perfect womb’ nor does a woman know she is pregnant until weeks or months after conception. It is possible that recognizing ‘fetal abuse’ in the form of laws that criminalize the behavior of pregnant woman, will get out of hand and criminalize the lawmaker’s idea of an imperfect pregnancy. This may raise broader social issues of discrimination with the risk that pregnant women prone to destructive behaviors may demonstrate reluctance to seek pre-natal care, or to give honest and accurate information to health care providers for fear of reprisals.[iv]
A horrible dilemma, a mid-way position could be to criminalize behavior where there is a strong medical consensus about the magnitude and severity of risk of harm she is exposing the child to though her behavior, and a consensus that intervention at that time will protect the unborn child from harm.[v] However criminal punishment in this circumstance must also consider the consequences on the mother-child bond. A woman lawfully choosing abortion on the grounds of disability to avoid prosecution would circumvent the intent of such legislation as now there is no longer a child to protect.
Criminal law expresses society’s disapproval with certain behavior. It can punish an individual and also act as a general deterrent to others considering engaging in similar behavior. Arguably, drug addiction is complicated due to the nature of addiction, and the impact it has upon the free will and culpability of the individual. As addiction is a chronic, relapsing biological and behavioural disorder that has genetic components, a pregnant woman may suffer enormously where harm to the child occurs as a result of her addiction and her behavior.
In this scenario, compassion and support rather than judgment play a great part in both the medical and political response. The woman ought to be praised for wanting to give the child life, and not resorting to an abortion.[vi] Ultimately, the pregnant woman in this situation needs support to validate her worthiness to be a caring mother, and to voluntarily curb her addiction and restrain her liberty for a higher purpose – her child’s health. Accordingly, legislation that criminalizes behavior such as drug taking in pregnancy is probably not the answer.
Anna Walsh is a lawyer specialising in medical law. Based in New South Wales, she is a full time academic and lecturer in the School of Law at the University of Notre Dame Australia (Sydney).
[i] Quoted in The Sydney Morning Herald, 13 October 2018, Esther Han, ‘NSW Premier considers law change after unborn babies ‘horror’ deaths’.
[ii] Crimes Amendment (Zoe’s Law) Bill 2017 (NSW). A similar bill which failed to pass was the Crimes Amendment (Grievous Bodily Harm) Bill 2008.
[iii] Crimes Amendment (Zoe’s Law) Bill 2017 (NSW) Schedule 1, clause 2.
[iv] See, e.g., Michelle Oberman, ‘The Control of Pregnancy and the Criminalization of Femaleness’ (2013) 7(1) Berkeley Journal of Gender, Law and Justice 1.9; Lynn Paltrow & Jeanne Flavin, 2013, ‘Arrests of and Forced Interventions on Pregnant Women in the United States (1973-2005): The implications for women's legal status and public health,’ Journal of Health Politics, Policy and Law.
[v] In the sense that the law seeks to protect the fetus from harm and not having any life can be seen as harm. Others may disagree and argue that ensuring a life lived with disability is harmful.
[vi] Support should come in the form of family, community, medical and governmental support. Church communities who press for moral recognition of the unborn child and the dignity of disabled life have a special obligation to provide practical, charitable support. Many of course do live up to this standard.
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