A woman, 21 weeks pregnant, is told the terrible news that the baby she is carrying has a genetic defect that means it will die when born. She faces a choice that is really no choice at all – carry to term, and watch the child die, or have birth induced at 21 weeks. Same result.

There is no birth certificate as the baby is not regarded as a person, but there is a burial at the baby lawn of a crematorium.

“I could not get a birth certificate, and it added to the struggle,” she says 18 years later. Naturally, that child will always be a person to that mother. He is still her first-born son. His name is Jack.

Today that mother would be given a certificate – current federal and state laws require that when a foetus dies after 20 weeks gestation, the woman who was pregnant should be given birth and death certificates.

In South Australia right now, a battle is on for women whose babies are stillborn before 20 weeks to be granted a birth certificate. Grieving mother Tarlia Bartsch told ABC radio earlier this week that she is fighting for recognition of her baby boy Jayden, stillborn at 19 weeks.

This is what she thinks about, two years after his death: “Being absolutely devastated that I’m having to go through giving birth to my baby, which is exactly what he was to me, and then be told that he was absolutely nothing and he wouldn’t be recognised – that’s probably my biggest thing that I remember, is being told that he didn’t exist.”

Her fight was taken up by Family First MP Robert Brokenshire, and Jayden’s Law, which aims to recognise stillborn babies much younger than the current legislation, will be debated in the SA parliament. Brokenshire is suggesting recognition being wound back to the 14 or 15 week gestational mark.

Meanwhile, a new “commemorative” certificate has been introduced to help grieving parents.

When does a miscarriage become a stillbirth? When does a foetus become a person? Is it about viability – that is, the moment from which the child would survive outside the mother’s womb?

20 weeks

These are questions that have tied the abortion debate in knots for decades and now there is deep concern that this argument for recognition – that undoubtedly helps grieving mothers – will be used to wind back women’s access to abortion.

Tomorrow in the NSW Parliament, the so-called Zoe’s Law II will come before a conscience vote. It has been drafted as a result of an accident in which Brodie Donegan, 32 weeks pregnant, was hit by a car being driven by a man under the influence of drugs and alcohol. Her baby, Zoe, was tragically stillborn.

Zoe’s Law seeks to introduce a new crime of grievous bodily harm against a foetus. If enacted, under the new law a person who harmed a foetus could be charged with grievous bodily harm against a foetus of 20 weeks or 400 grams, rather than against the pregnant woman.

There are proposed exemptions to the concept of harm to the foetus which are designed to keep this from becoming an abortion debate. They cover medical procedures and actions by the mother – “anything done by or with the consent of the pregnant woman”

The original bill was first proposed by Christian Democrat MP Fred Nile, but the current version was introduced by Liberal MP Chris Spence, and has come under fire for the lack of public consultation.

Anne Summers wrote on The Hoopla earlier this week: “Look at what is happening this week in the NSW parliament where Liberal Premier Barry O’Farrell is permitting a conscience vote on so-called Zoe’s Law, a private members bill that would confer “personhood” on a foetus of 20 weeks or 400 grams.

“If this law is passed, and there is a real risk that it will be (because the ALP has also, inexplicably, allowed a conscience vote), a mother could be charged under the Crimes Act if she seeks an abortion after 20 weeks or is otherwise deemed to have hurt the foetus, through such behaviour as drinking or drug-taking.”

The Women’s Electoral Lobby Melanie Fernandez says the “precarious nature” of abortion laws in New South Wales could be tipped in favour of so-called pro-life values if Zoe’s law is passed.

She told SBS last week: “We have real concerns about that (law) further criminalising abortion in this this state and women who have terminations.”


At the 2010 review of the laws in the aftermath of Brodie Donegan’s accident, medical expert Professor John Seymour told the panel that if a criminal offence against an unborn child, separate to the mother, was introduced it could gradually change the way the foetus is regarded.

According to the SMH, he said protecting the foetus from assault and reckless driving could progress to protecting it from pregnant women behaving in risky ways. Even with careful exclusions, the symbolic effect would have ramifications in other contexts, he argued.

Is it possible to delineate between the need to recognise personal grief, and the need to protect women’s reproductive rights, or is this a slippery slope?

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