Proposed WA foetal homicide laws dangerous to mums and babies

Proposed WA foetal homicide laws dangerous to mums and babies

27 February 2012   

Proposed WA foetal homicide laws dangerous to mums and babies

Australian Medical Association West Australian President Dave Mountain has called for proposed Western Australian foetal homicide laws to be used as penalties for women who homebirth and those who support them.

‘This call to criminalise homebirth mums and their care providers is an outrageous and frightening suggestion,’ Homebirth Australia spokesperson Michelle Meares said.

‘While we absolutely support all steps to protect the safety of babies and mothers, the use of the criminal law system to police pregnant mums and their behaviour will take reproductive rights away from women by granting a foetus independent legal rights. What is next mandatory detention of pregnant mums and forced caesareans if they don’t comply with doctor’s orders?’

‘The medical decisions made by a mother who nurtures an unborn baby in her womb should be solely her legal responsibility and a woman should not be facing the threat of criminal charges for giving birth.’

‘To criminalise women for their birth choices in this day and age is completely unacceptable and unlawful as it breaches Australia’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),’ Ms Meares said.

The suggestion by the West Australian AMA president to use the proposed laws in this way demonstrates a significant misunderstanding of the law of homicide. The NSW Council for Civil Liberties in a submission to a review of similar laws in New South Wales in 2010 noted that ‘for centuries it has been the position of common law that before anyone can be killed they must first be born.‘ The proposed changes in Western Australia would reverse laws that say a baby must be born alive to be considered a “human” for criminal purposes.

A review of laws surrounding criminal incidents and the death of an unborn child was held in NSW in 2010 by the Honourable Michael Campbell QC. He did not recommend that NSW introduce any other specific offences for the death of an unborn child and considered that current legislation responded appropriately. A submission by the NSW Australian Medical Association to this review also opposed the creation of a criminal offence which recognises an unborn child as a legal entity independent of its mother recognising that this would create ‘unecessary complications’ in obstetric care.

Homebirth Australia believes that the expansion of foetal rights has wider implications that must be considered and threatens women’s right to make consensual medical decisions during pregnancy and birth.  These proposed laws impact on all women’s reproductive choices around abortion, pregnancy and childbirth and must be resisted in an open and democratic society.

‘To suggest that traumatised women who are refugees from obstetric medical care and their care providers, should be charged with a crime is a proposal to move back to the dark ages by the AMA WA President,’ Ms Meares said.  ‘We need to ask why are these women so reluctant to return to hospital based obstetric care and how can we support them to give birth at home safely? ’

Contact: Michelle Meares 0439 645 372