Baby Lost

by Hannah Robert

  I woke to my own crying, and found my arms around someone warm—Rima. I listened for Ali’s snuffling breath in the co-sleeper next to our bed, and when I heard him, I exhaled—grateful for him; grateful for Z visiting my dreams; and so, so grateful for that feeling, however brief, of holding both my babies in my arms.

  29

  Zoe’s Law

  In mid-2013, several Sydney friends got in touch about the proposed ‘Zoe’s Law’ bill before the New South Wales Parliament. Zoe was the name Brodie Donegan and Nick Ball gave their baby daughter, stillborn on Christmas Day 2009 after Brodie was hit by the drug-affected driver of a van, just two days before our accident. A fetal heartbeat was still present when Brodie arrived at hospital, but by the time doctors could stabilise her, it was fading, and Zoe was stillborn at thirty-two weeks gestation. As in our case, because Zoe did not show any signs of life when she was born, the driver could only be charged with dangerous driving causing grievous bodily harm, not dangerous driving causing death.1 For Brodie and Nick, this quirk of legal personhood meant that they felt that Zoe’s life was never ‘acknowledged or taken into account’.2

  When Brodie and Nick took to the media to campaign for a change to the law to recognise Zoe and other stillborn babies as legal persons for the purposes of the criminal law, it was Christian Democrat politician Reverend Fred Nile who acted first. Nile had made a name for himself by proclaiming homosexuality a ‘lifestyle choice’ that is ‘immoral, unnatural and abnormal’, seeking a moratorium on Muslim people migrating to Australia, and using the suicide of TV personality Charlotte Dawson to publicise his (completely unfounded) theories about a link between depression and abortion.3 Classy politics, indeed.

  Without consulting Brodie and Nick, Nile used their daughter’s name to introduce a private member’s bill that would create a new offence of ‘causing serious harm to or the destruction of a child in utero’.4 To claim back their daughter’s name, Brodie and Nick worked with their local member, Chris Spence, to launch their own private member’s bill. It was more circumspect than Nile’s with its pro-life undertones, but nonetheless sought to define a fetus as a legal person for the purposes of particular offences. Nile’s bill would have extended legal personhood to a ‘child in utero’ defined as ‘the prenatal offspring of a woman’—vague enough to cover an embryo from conception, and conspicuously avoiding use of the term ‘fetus’, which only applies from about nine weeks after conception. Spence’s bill would have applied once the fetus was at least twenty-weeks gestation; or, if gestational age could not be determined, where the fetus had a body mass of 400 grams or more.

  I’d avoided getting involved in the debate because I still wasn’t sure exactly what I thought. Rima and I were in the midst of a divorce (when you’ve got kids, pets and a mortgage, I think separation still counts as a divorce, even though we’d never been able to get legally married). Ali and I were living with friends and family while we sorted out our post-separation accommodation. I was back at work, teaching a new subject, and often sleep deprived thanks to a night-waking toddler. But I knew that this was something I had to engage with—and that it was only by writing about it that I could figure out exactly what I thought about it. I’d been livid in January 2010 when a pro-lifer had sought to use our case to suggest that ‘permissive abortion laws’ were to blame for the law’s failure to recognise the distinct harm of losing a wanted pregnancy due to someone else’s violence or reckless driving. I had been deep in my grief then, and wasn’t ready to cross the chasm between my grieving heart and my brain’s capacity for legal reasoning.

  When I revisited it all in late 2013, the thing that bothered me about the debate so far was that it had been reduced to polarised understandings of pregnancy. Either you were pro-choice, and opposed Zoe’s Law because it sought to extend legal personhood to fetuses; or you saw the fetus as a ‘baby’, and, therefore, all babies, whether in or outside the womb, should be ‘worthy’ of legal personhood, even at the expense of the legal personhood or basic human rights of their mothers. In that shallow dichotomy, I could be a feminist or a grieving mother, but not both. But as I read and wrote my way around the topic, it became clear that this dichotomy had at its core some shady unstated assumptions.

  First was the assumption that everything turned on the inherent characteristics of the fetus: was it human enough, or similar enough to a newborn baby, to count as a legal person? Or did women’s rights to make decisions regarding their own bodies while pregnant depend on defining the fetus as ‘just a bundle of cells’? Given the diversity of religious and philosophical beliefs in the world, and the diversity of situations in which pregnant women find themselves, it is unlikely that any kind of consensus will ever be reached on the inherent value of any particular fetus, let alone ‘the fetus’.

  This whole line of inquiry about the ‘value’ or ‘sanctity’ of the fetus as an archetype required a disembodied kind of thinking, a stripping away of the pregnant woman and the maternal–fetal relationship that makes fetal life possible. In assessing the status of ‘the fetus’, the mother was dissected out of the picture, reduced to mere geography. I thought of Da Vinci drawings—disembodied wombs sliced open like seedpods.

  This was the kind of logic that led Alabama lawyers and judges to interpret ‘environment’ to include the womb—repurposing laws designed to address children being exposed to meth labs, in order to charge and convict women whose babies have been found with drugs in their system.5 The same logic led an Alabama district attorney in 2015 to file a motion to terminate a pregnant prison inmate’s parental rights over her embryo when she was in early pregnancy and wanting an abortion.6 The case never went to trial, as the woman eventually withdrew her request for an abortion. Whether that represented her choice or a concession to the pressure placed on her will never be known. If a woman’s ‘parental rights’ to an embryo or fetus within her own uterus can be terminated and handed over to welfare authorities, what rights are left for the rest of her? If the food she eats or drugs she inhales affect the embryo, then do the authorities also have ‘parental rights’ over her mouth, stomach and lungs? Her blood vessels? Imagining the fetus as a separate legal person suddenly propels us into a world like that of Margaret Atwood’s dystopian novel The Handmaid’s Tale, where women are treated as ‘two-legged wombs’.

  Framing the debate in terms of the inherent features of the fetus also conceded important ground. It suggested that the reason we could ‘let’ women make decisions about pregnancy and abortion was because those decisions were relatively inconsequential ones, which were merely about a ‘bundle of cells’. When those decisions became weightier, as fetuses have a tendency to do, the arguments about women’s rights to make those decisions appeared shakier.

  The key difference between a late-term fetus in utero and a newborn baby is not size or stage of development; plenty of premmie babies have been born alive who were smaller and less developed than Z. Rather, it is the fetus’s situation within its mother’s womb and person, and its reliance on her for every possible need, that makes the question of fetal legal personhood complicated. Z had died not from any wound caused from the impact, but from the placenta abrupting and detaching from the wall of my uterus. She was left drifting, like a small astronaut whose oxygen supply has come unplugged. Her death did not make sense outside the context of my womb and my body bearing the brunt of two vehicles colliding.

  I found myself agreeing with Sydney Law School academic Kristin Savell, who suggests that birth is significant because it is the moment when the baby becomes an embodied individual.7 At birth, the baby’s skin encounters not amniotic fluid or the inside of the mother’s uterus, but air, and other people, and with them the social interactions that create our need for law and legal personhood. Birth is itself the division that creates a new individual, and in which the baby transitions from the universe of the uterus to our worldly, social universe. Here we interact via laws, language, social conventions and sometimes violence, rather th
an via the flow of nutrients across the placenta, and the muffled sounds of heartbeat, voice and bodily functions.

  Savell’s approach resonated with me, because in my belly, Z had been Haloumi—a mysterious baby-fetus, known only by the sensations she created within my body. We loved her, even as we guessed whether she was a she or a he, or whether that was a knee or an elbow moving across my belly. But once she was born, she solidified into herself. Yes, her face was always hers, but we didn’t know it as hers until she was born and we became acquainted with the whole particularity of her. And as much as we loved Haloumi as a nickname, she was now a little person, and needed a proper person name. The fact that she died before that transition occurred—from fetus-baby to person—may have meant that the law couldn’t treat her death as the death of a legal person, but it didn’t mean the law couldn’t treat her as a legal (but deceased) person once she was born, requiring a funeral and certification as our child.

  I also wanted to address the pervasive assumption that legal personhood amounted to some kind of societal certification of human worth. In an increasingly secular society, law is one of the last bastions of ritual. Judges and barristers wear ceremonial robes and wigs, and the court space is a semi-sacred one where there is a time for bowing, a time for speaking, and a time for silence. And what are legal documents but magical incantations, which, when prepared, signed, sealed and certified in the correct manner, can change the unseen properties of people and things? Yet, I wanted to challenge the recourse to law, and to suggest that the task of making sense of pregnancy loss or termination is an intensely personal one, unsuited to the universal definitions and mechanisms for consistency that are the hallmarks of legal processes. I was hesitant to invite the law into my uterus—to let it mediate the shifting relationships between the unfolding process of fetal life within my body, and my developing emotional and cognitive sense of my child within my heart and mind.

  When I started researching other jurisdictions that had created criminal offences around fetal deaths in utero, what shocked me was how often such laws were used to prosecute the pregnant women themselves. These were women like Melissa Rowland. Pregnant with twins in Utah in 2004, she had initially refused to consent to a caesarean section delivery, and was subsequently charged with murder when one of her twins was stillborn.8 On a plea bargain, the prosecutor dropped the murder charge in return for her pleading guilty to child endangerment. By expanding the legal meaning of ‘child’ to include a fetus in utero, the Utah prosecutors construed a pregnant woman’s decisions about her medical treatment and about birth as criminal acts.

  Nina Buckhalter and Rennie Gibbs were Mississippi women also charged with homicide offences when their babies were stillborn. Prosecutors argued that the women’s illegal drug use amounted to manslaughter by culpable negligence, in Buckhalter’s case, and ‘depraved heart murder’, in Gibbs case. Both indictments were eventually dismissed, but only after consuming years of these young women’s lives.9

  Indiana woman Bei Bei Shuai was 33-weeks pregnant when her lover left her. Distraught and suicidal, she swallowed rat poison. She was hospitalised, survived and the pregnancy continued, but, a week later, an obstetrician noticed an unusual fetal heart rate, and Shuai consented to an emergency caesarean section. Her baby daughter, AS, was born alive, but gravely ill, due to a brain haemorrhage. Three days later, Shuai consented to removing AS from life support and she died. The coroner’s view was that the brain haemorrhage was due to the rat poison. Prosecutors treated the transmission of the poison from Shuai’s bloodstream, across the placenta and into her baby’s bloodstream as a voluntary act of poisoning, and charged Shuai with murder and attempted feticide.10

  I thought of these women and the hospital rooms where they had held their babies, feeling their cheeks get a little colder. I thought of how broken we were in that moment, and imagined that vulnerable space suddenly crowded by police with accusing looks, taking away our child’s body as ‘evidence’ against us. To heap on punishments when these women had already lost so much felt more like cruelty than justice.

  The acts that these women were being punished for also felt very different from the violence in cases where men stabbed or punched their pregnant partners. These were acts that concerned the women’s own bodies: decisions about medical treatment, or addictive or self-harming behaviours. It was only due to the involuntary physiological processes of their own pregnant bodies that their acts affected their fetus. They couldn’t insulate their fetus from their actions, their addictions or their mental illnesses any more than they could separate their minds from their bodies.

  When laws are promoted as ‘protecting’ mothers like me and our babies but end up being used to prosecute women like Melissa Rowland, Nina Buckhalter, Rennie Gibbs or Bei Bei Shuai, it contributes to polarised views of ‘good mothers’ and ‘bad mothers’. And it is not just the so-called ‘bad mothers’ who are policed by these prosecutions. These cases send a powerful message to all pregnant women that if they are not compliant when doctors advise an intervention during their pregnancy, they risk criminal charges and the shaming that comes with the ‘bad mother’ tag. And for those women who are pregnant and struggling with addictions or mental health difficulties, evidence from the US shows that taking a punitive approach means that these women are less likely to seek prenatal care or to disclose these complicating factors to their health care providers—resulting in worse outcomes for their babies.11

  I sat down and nutted out a short article for The Conversation website.

  Why losing my daughter means I don’t support Zoe’s Law

  18 November 2013

  A bill currently before the NSW Parliament attempts to criminalise harm to late-term fetuses that die due to injuries inflicted on their mother. But is fetal legal personhood the best way to recognise the particular harm of losing a much-wanted pregnancy due to someone else’s violent or careless act?

  As a feminist legal academic, I have professional insight into the prospective law; I also have personal insight as a mother who lost her unborn child in a car accident.

  It reads like a macabre riddle—someone died within my body, and yet I live. It’s one that I’ve puzzled (and wept) over many times since a four-wheel drive hit our station wagon when I was eight months pregnant in December 2009, causing our baby daughter to die before she could be born.

  The current law’s attempt to answer this riddle is a clumsy one. It characterises our daughter’s death as one of my ‘injuries’, because she died in utero, and was not a legal ‘person’ with a separate existence from me at the time she died.

  It is exactly this riddle which Zoe’s law (No 2) attempts to resolve.

  What the bill does

  The bill defines a fetus over twenty weeks or weighing more than 400 grams as a legal ‘person’, for the purposes of dangerous driving causing grievous bodily harm and a number of other criminal offences.

  Zoe’s law is named after Brodie Donegan’s daughter, Zoe, who also died in utero due to dangerous driving in December 2009.

  For Zoe’s parents, this bill seeks to close what they see as a gap in the law:

  We have never felt that Zoe’s loss of life was acknowledged or taken into account … I couldn’t reconcile that the child I’d applied for a stillbirth certificate for, held a funeral for, received the baby bonus for, received paid parental leave from work for; wasn’t recognised separately to me.

  The law’s response touches a raw nerve because so much of the grieving process is about developing an understanding of who you are mourning—a process already complicated when your child dies before (or around the time of) birth.

  Calling our loss an ‘injury’ fails to acknowledge the depth of sorrow involved in grieving a child. But is fetal legal personhood the best way for the law to recognise our loss?

  Legal personhood

  A key difficulty here is that legal personhood has been interpreted as the definition of human life and worth. Legal personhood is a
technical category that sometimes includes non-humans, such as corporations. Its purpose is not to define human life but to enable an autonomous interaction with the law.

  Legal personhood doesn’t make sense for a baby in utero. The physical reality of pregnancy means that the baby is the opposite of autonomous—it depends completely on the mother and is completely contained within her body until birth.

  While inside the mother, a baby is covered by her legal personhood. Birth is the moment of separation when the baby is no longer contained within the mother and her legal personhood.

  I have no doubt that my daughter was a person—but I am comfortable with the idea that, at the time she died, she was protected by my legal personhood rather than her own.

  Once the fetus is defined as a legal person, the law has a direct relationship with it, and the mother’s consent becomes irrelevant. She becomes invisible in the eyes of the law, despite the physical realities of pregnancy meaning that any interaction with the fetus necessarily involves her.

  Zoe’s bill is drafted to create exceptions for anything done to the fetus by the mother, with her consent or by a medical professional. But this creates a situation where it is legal to take the life of some legal persons, but not others, depending on the consent of a third party (the mother).

  And it opens up the prospect of human rights claims being brought on behalf of a fetus. With that comes the prospect of challenges to the pro-choice exceptions built into Zoe’s law.