Monday, May 24, 2010

What is a foetus?

The NSW Attorney-General has announced another review into legal status of the deliberate death of a foetus. This is in response to an incident in which Brodie Donegan lost a baby at 32 weeks pregnant because she was hit by a car which mounted the curb on Christmas Day last year.

Donegan wants the driver charged with manslaughter, which isn't possible under our current laws.

I'm not a lawyer (I'll be interested in reading more trained commentary - Jo Tamar I'm looking at you :) ), but it seems to me that this is one of the stickier questions in law. Whilst I understand that losing a baby at 32 weeks (because regardless of technical definitions, I think most women are thinking of the foetus as a "baby" by 32 weeks) is devastating, and deserves to be treated as something more than another broken bone, I'm nervous about declaring that the foetus is legally a born person. I'm fairly confident that I don't want to see the death of a foetus as manslaughter, but perhaps a specific category - loss of a foetus as a consequence of harm to the mother - may help address the gap between a late term foetus being either equivalent to the rest of your body tissue or being a equivalent to born person. I think that defining it in terms of harm to the mother helps to avoid unintended consequences that may make it impossible for a woman to terminate a late term pregnancy in life threatening circumstances.

I feel keenly for Brodie Donegan, and I don't blame her for wanting this changed, but it's critical that we don't invoke the Law of Unintended Consequences in a terrible way.


  1. Totally agree that this is just yet another attempt to sneak legal personhood of the fetus in by the back door.

    I don't see why it should be considered particularly different from other kinds of grievous bodily harm, harm that may or may not have special meaning to the person concerned, just like any other injury may or may not have particular practical and/or emotional impacts on different individuals.

    There's nothing inherently minor about GBH in the eyes of the law - it can mean a decade or more in prison depending on where you are.

  2. I can understand your position, but I think I can also understand why a woman would want the loss of the baby acknowledged legally, at least in some way. If, however, that can't be achieved without conferring personhood to the foetus, then I would agree that it stays exactly as it is.

    It may well be that if there is a problem, it's with the implementation of the law as it stands - as you say, GBH has some far reaching consequences. The need is for the woman's (and those around her's) loss to be acknowledged, and if that isn't happening sufficiently as it stand, it needs to change. Granted, I'm not prepared to state that it isn't happening currently on the say so of the Terror.

  3. This is a tough one, on the one hand the foetus was clearly terminated by the drunk driver, on the other hand there is no guarantee that the foetus would have been born, however if i was in her position, I would consider it manslaughter as well.

    I dont know the law regarding GBH either, but if sentencing is anyway tied to the injury inflicted, i would be hard pressed to think of a more serious harm that could befall someone..

  4. Adam, yeah, I can see why she thinks it's manslaughter, but if you call it that, then abortion is murder and that's not really where we want to go.

    But yes, it seems likely that if it is regarded as at the extreme end of GBH it should meet the needs.

  5. Ariane, I'm not going to write a separate post, I'm just going to write my usual long comment ;) The reason is that while my comment is fairly long, it doesn't add much of substance to the conversation already here - just gives a bit of detail and explication :)

    (And just to make it clear: I'm also a bit concerned about the personhood-of-the-foetus implications of a separate law, although I understand the huge symbolic effect of a separate law for women who have had foetuses die as a result of violence.)

    Also, as a disclaimer: I'm not a criminal lawyer, so there may be something I'm missing. But I do get the general principles and I'm pretty sure that the explanation below is ok, as far as it goes.

    So, the short answer to your question is this: if a person is convicted of grievous bodily harm against a woman who is pregnant, and the foetus dies as a result, that is regarded towards the extreme end of the GBH spectrum.

    And here's the longer answer!

    To put the crime in context, in a case called R v King, King punched a pregnant woman in the belly, causing her to fall on the ground, and then stomped on her belly six or seven times. The foetus died. King would not have been convicted of GBH if the death of the foetus could not have been taken into account (which means that, apart from the death of the foetus, the mother's injuries weren't very serious). The NSW Court of Criminal Appeal first said that the foetus was, relevantly, part of the mother ([2003] NSWCCA 399), and sent him back to the District Court for trial and sentence. He pleaded guilty (which allowed him to take advantage of a reduction in sentence - that's important to realise), was sentenced initially to a maximum of 10 years, minimum of 6.5 years. On appeal, the Court of Criminal Appeal resentenced him to a maximum of 12 years, minimum of 8 years.

    Now, that may not seem that that is the extreme end of GBH, given that the maximum sentence for GBH is 25 years. However, in a case (not involving foetus death) which was explicitly stated as deserving a sentence at the upper end of the range for GBH, an offender was sentenced to 12 maximum, 8 minimum (a co-offender was sentenced to 16 maximum, 12 minimum - apparently largely because of his prior criminal history).

    The actual sentence received will depend on a number of factors (including culpability of the accused, such as any intention to cause GBH, planning carried out, etc, as well as other aggravating factors such as being in company; and also subjective factors relating to the accused, such as whether they have ever been convicted of a crime before, mitigating circumstances, and so on).

    But sentences can still be compared, and comparing the sentence in King to cases of GBH which are said to be explicitly at the upper end of the range of GBH, causing death to a foetus is a factor which is clearly considered by the courts as bringing an offence into the upper end of the range of GBH.

  6. Thanks very much for this - not surprisingly the Telegraph failed to provide this analysis of the GBH laws. The sentence for King also seems to be on par with manslaughter sentences, at least approximately, so it seems that in practice, the GBH laws cover it.

    It really is only about symbology, then. I think I would support some sort of categorical recognition of death of a foetus by violence, but the imperative doesn't seem huge to make it happen. There are, I suspect, huge swathes of law reform I would see as more pressing.