REFORMS TO BETTER RECOGNISE THE LOSS OF AN UNBORN CHILD DUE TO CRIMINAL ACTS

Expectant parents who lose an unborn child due to another person’s criminal act will be better supported and offenders will face tougher sentences under a suite of reforms proposed by the NSW Government.

Attorney General Mark Speakman said creating new criminal offences will expressly recognise the loss of an unborn child as a unique injury and loss for the pregnant woman and other family members.

“Currently, there is no stand-alone offence of causing the loss of an unborn child. These proposed changes will better acknowledge the heartbreak suffered by families and punish offenders appropriately,” Mr Speakman said.

The Crimes Legislation Amendment (Loss of Foetus) Bill 2021 proposes to strengthen the law by creating two new offences in the Crimes Act 1900:

  • A stand-alone offence of ‘Causing the loss of a foetus’, which will apply to a wide range of criminal acts and carry a maximum penalty of 5 to 28 years imprisonment depending on the type of act (such as dangerous driving or grievous bodily harm with intent to the pregnant woman). The combined maximum sentence for this offence and the existing criminal offence will be 3 years higher than currently available for this conduct under existing law.
  • An offence of ‘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 reforms will also improve support and recognition available to parents who have lost an unborn child of any age as a result of a third party criminal act. The reforms will enable:

  • family members to 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 to be included in the formal wording of charges against an accused (the indictment);
  • family members to claim funeral costs for the loss of an unborn child caused by a car accident.

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

Mr Speakman said the proposed amendments do not affect reforms introduced by the Abortion Law Reform Act 2019. The offences will expressly exclude any act or omission by the pregnant woman.

Significantly, these reforms are not intended to displace the centuries old ‘born alive rule’, which provides 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.

“The reforms recognise the loss that parents and families go through in these cases, without undoing longstanding legal principles,” Mr Speakman said.

“The NSW Government has consulted community and stakeholders, listened carefully to the variety of views, and developed reform that is proportionate and appropriate to better recognise the loss of expectant parents and their families in these tragic circumstances.”