Murder or Miscarriage? The Feticide Debate

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One of the most hotly debated legal issues these days is whether those who have intentionally caused a miscarriage should be charged with foetal homicide – commonly known as ‘feticide.’

On the one hand, women’s rights advocates have cautioned against recognising the legal personhood of foetuses, arguing that doing so could criminalise women seeking an abortion; thereby exposing them to prosecution and harsh penalties under the law.

On the other hand, recent cases in the United States have led to calls for unborn children to be protected by the law, and for those responsible for procuring their untimely deaths to be prosecuted for feticide.

While Australia does not currently have a law against feticide, the US cases have potential to reignite the debate over Zoe’s law in Australia, a controversial piece of legislation that would effectively recognise unborn foetuses as ‘legal persons.’

After months of parliamentary delays, the Zoe’s law bill lapsed late last year, however Christian Democratic Party leader Fred Nile has vowed to revive it in the wake of his re-election.

Recent US Cases

In a story that has made news headlines around the world, 33-year-old Indiana woman Purvi Patel was convicted of feticide and child neglect after a court found that she induced the abortion of her unborn child.

The court heard that Ms Patel became pregnant after having an affair with a co-worker. After discovering the pregnancy, she ordered abortion medication online.

The prosecution alleged that a few days after taking the medication, Patel had an abortion, telling her lawyers that ‘the baby fell out’ in the bathroom. She is believed to have been between 28 and 30 weeks pregnant.

In a state of apparent panic, Ms Patel left the baby’s body in a dumpster on her way to hospital. She told hospital staff that she was suffering vaginal bleeding, but that she had not given birth – but doctors began asking questions after they saw an umbilical cord protruding from her body.

Patel claimed that she suffered a miscarriage at home, and that the child was not breathing upon its birth. In an interview with police, she stated, ‘I assumed because the baby was dead there was nothing to do.’

However, Ms Patel was ultimately found guilty and sentenced to 30 years imprisonment with a 20 year non-parole period. The presiding judge noted that Patel had treated the baby ‘as a piece of trash.’

The case is the first time a woman has been convicted of ‘feticide’ in the state of Indiana.

However, the case has drawn criticism from members of the public and reproductive rights advocates, with many pointing to the fact that the prosecution evidence was unreliable.

Toxicology tests performed on Ms Patel revealed no trace of the abortion drugs which she was alleged to have taken.

Critics of the case have also argued that it sets a precedent whereby anti-abortion laws will be used to punish pregnant women. They have suggested that the outcome may also discourage women who have suffered a miscarriage from seeking medical attention for fear that they may be prosecuted.

Feticide laws were originally enacted with the intention of facilitating the prosecution of those who intentionally or recklessly kill a woman’s foetus without their consent – for example, drunk drivers who cause a car accident resulting in the death of an unborn child.

Yet ironically, these people have escaped prosecution in other states of the USA such as Colorado, where it was recently reported that a pregnant woman had her fetus removed by another woman who is suspected to be mentally ill.

26-year-old Colorado woman Michelle Wilkins was 7 months pregnant when she stumbled upon a Craigslist post advertising baby clothes.

But when she turned up to collect the clothes, she was viciously attacked.

It’s alleged that 34-year-old Dynel Lane stabbed Ms Wilkins in the abdomen and removed her foetus, however the baby did not survive.

Lane was arrested after she turned up to hospital claiming to have suffered a miscarriage. She was charged with murder, assault, and child abuse knowingly and recklessly resulting in death.

However, the murder charge was later dropped because Colorado law states that it cannot be pressed ‘if it is not established that the foetus lived as a child outside the body of the mother for some period of time.’

Feticide laws do not currently exist in Colorado.

What Does Australian Law Say?

The above cases illustrate the complexities associated with feticide laws in the US and the wide range of competing interests in these tragic incidents.

While NSW does not have feticide laws as yet, there have been attempts in recent years to introduce a bill known as ‘Zoe’s law’ to recognise the legal personhood of foetuses.

Proponents of Zoe’s law sought to create a new offence of causing grievous bodily harm to a foetus where a person is found to have destroyed or harmed a foetus past the 20 week mark.

If it had passed, it would amend current laws which recognise a woman and a foetus as one and the same – that is, a child is not recognised as being a separate person until it has been born.

Under current laws, a person who causes the death of an unborn child in circumstances other than a lawful abortion can only be charged with recklessly or intentionally causing grievous bodily harm.

The maximum penalty is 25 years imprisonment where there is the intention to cause harm. In circumstances of recklessness, the maximum penalty is 10 years imprisonment.

However, the Zoe’s Law Bill lapsed before it could be passed, in a move that was welcomed by women’s rights advocates around Australia.

Critics of the Bill had raised concerns that it could be used to prosecute women who suffered miscarriages, or that it could effectively criminalise abortions altogether.

However, opponents of the Bill are still wary of future changes to the law as state MP Fred Nile recently announced his intentions to reintroduce it in the future.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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