New South Wales has become the first state in Australia to create a standalone criminal offence for causing the death of an unborn child.
Previously, the loss of an unborn child was considered part of the grievous bodily harm caused to the pregnant woman. There was no separate offence relating to the loss of a foetus.
The new offences which are found in sections 54A and 54B of the NSW Crimes Act came into effect on 29 March 2022.
Offence of causing loss of a foetus: This offence will apply to a wide range of criminal acts, such as dangerous driving causing grievous bodily harm or grievous bodily harm with intent to injure the pregnant woman. The offence will carry a maximum penalty of 5 to 28 years imprisonment, depending on the act.
Offence of causing loss of a foetus (death of pregnant woman): This offence will apply if a person’s act or omission constitutes a homicide offence, such as murder, manslaughter or dangerous driving occasioning death where the foetus is lost and the expectant mother is killed. It will carry a maximum penalty of 3 years imprisonment which will apply in addition to the maximum penalty for the homicide offence.
Meaning of Foetus
Under the legislation, a “foetus” must be of at least 20 weeks’ gestation or, if it is not possible to reliably establish the period of gestation, have a body mass of at least 400 grams.
Other changes ushered in by the new laws include:
- Victim impact statements can be taken into account by courts when sentencing offenders;
- Families may be eligible for a one-off $3,000 bereavement payment;
- The name of an unborn child can be included in the charge sheet (the indictment); and
- Families can claim funeral costs if the loss of the unborn child is caused by a car accident.
The long-awaited reforms are the culmination of many years of discussions and advocacy to introduce what became known as “Zoe’s law”, named after the unborn daughter of Brodie Donegan who was hit by a drug-affected driver while she was walking along a footpath on Christmas Day in 2009.