New laws commence to better recognise loss of an unborn child due to criminal acts

29 Mar 2022

New laws offering greater support to expectant parents who lose an unborn child due to another person’s criminal act come into effect today.

Attorney General Mark Speakman said that from midnight, New South Wales has become the only jurisdiction in Australia to have a stand-alone offence of ‘Causing the loss of a foetus’.

“No law can ever repair the harm and distress caused in these circumstances, but these reforms better acknowledge the heartbreak suffered by families and hold offenders more appropriately to account through stronger sentences,” Mr Speakman said.

The new offences in the Crimes Act 1900 are:

• ‘Causing the loss of a foetus’ which will apply to a wide range of criminal acts and carry a maximum penalty of five to 28 years imprisonment depending on the criminal act, such as dangerous driving causing grievous bodily harm or grievous bodily harm with intent to injure the pregnant woman; and
• ‘Causing the loss of a foetus (death of pregnant woman)’ which can be charged with a homicide offence (such as murder, manslaughter, dangerous driving occasioning death) where the foetus is lost and the pregnant woman is killed due to a third-party criminal act. This offence will carry a maximum penalty of 3 years imprisonment and apply in addition to the maximum penalty for the homicide offence.
  

These can be charged where the foetus was at least 20 weeks or 400 grams weight.

“The commencement of these reforms is the culmination of years of advocacy by expectant parents. I recognise the extraordinary resilience of Brodie Donegan, Jacqueline Sparks and other victim-survivors in sharing their experiences,” Mr Speakman said.

Ms Donegan lost her unborn baby Zoe at 32 weeks gestation after she was hit and pinned under a van by a drug affected driver in 2009. She said the reforms bring justice a step closer for expectant mothers.

“I thank the Attorney General and the NSW Government for their commitment and acknowledgement of the tragedy, loss and importance of legal recognition. Nothing will replace Zoe, nor will it replace the grief experienced by families in the future impacted by tragedies such as this. 

“However, this law will go a long way in terms of recognition that anyone who commits a  criminal act causing the loss of an unborn child will be held accountable, the loss will count and be recognised at law,” Ms Donegan said.

In 2014 Ms Sparks lost her unborn child Mia at full-term after she was hit in a head-on vehicle collision by a drug affected driver. The accident ruptured Ms Sparks’ uterus leaving her unable to bear children.

“This law will really make a difference to a family in the future. Our daughters were everything to our lives. At the very least their loss of having a life can be accounted for. This law is about our loss and all the other families that have lost their babies, not by choice or illness or fate,” Ms Sparks said.

The operation of the new offence of ‘Causing the loss of a foetus’ is unique in terms of the breadth and variety of third party criminal acts it covers.

When either of the new offences are charged, families may be eligible for a one-off $3,000 payment. This bereavement payment can assist families to seek counselling and other support services.

Under the Government’s reforms, improved support and recognition is also available to parents who have lost an unborn child of any age as a result of a third party criminal act. 

The reforms now mean:

• family members can make victim impact statements that may be taken into account by the courts when sentencing offenders;
• the name of an unborn child lost as a result of a criminal offence can be included in the formal wording of charges against an accused (the indictment);
• family members can claim funeral costs for the loss of an unborn child caused by a car accident.

The laws do not affect reforms introduced by the Abortion Law Reform Act 2019, and expressly exclude any act or omission of the pregnant woman.

The reforms have been carefully crafted not to displace the centuries old ‘born alive rule’, which states that a crime of violence, such as homicide, can only be committed on a legally recognised person – a status attained when someone is born and takes their first breath.

“For many years, there has been discussion in the NSW Parliament about possible reform in this area of the criminal law but strong disagreement as to how that should occur,” Mr Speakman said.

“This reform delivers on a commitment by the NSW Government to seek expert advice and community feedback on how the loss of a foetus as a result of a third party criminal act might be better recognised in NSW law. 

“The NSW Government has carefully considered reform options in consultation with stakeholders and community, and developed a way forward that received almost unanimous support from the NSW Parliament.”

A factsheet with further details on the reforms is available here.