Reproductive autonomy
My own view is that the fetus is a life. But because it is a life completely contained within a legal person (the mother), any interests or rights it could have can only be advanced through the consent of the mother.
As a pregnant woman, what you choose to do with the life within you is a huge moral decision. But because that decision is completely contained within your body, and because you are already the mother to any child that might potentially be born, you are the best person to make that decision.
You are the most qualified person, the most concerned person, the person most at risk, and the most interested person.
For anyone to take that decision out of your hands, whether to insist that you continue with a pregnancy or to terminate a pregnancy against your will, is a violation. It goes beyond pain and physical injuries—it violates the mother’s decision for her own body and for any potential child.
It is this violation that I would suggest would be a much more effective base for a law recognising the harm Brodie Donegan and I experienced.
This could involve, for example, a specific offence addressing conduct that ends the life of a fetus without the mother’s consent.
Our current laws misconstrue forced pregnancy loss as just another type of bodily injury, rather than recognising it as a violation of reproductive autonomy. Like rape, forced pregnancy loss deserves its own offence centred on the notion of violation, rather than injury.
A law that frames forced pregnancy loss as a specific offence could acknowledge the family’s suffering in cases like mine and Brodie’s—and protect reproductive autonomy.
It doesn’t resolve the heart-breaking riddle of losing a child, but I’m not sure that any law could.
•
Just three days after my piece in The Conversation was published, the bill passed the lower house by sixty-three votes to twenty-six. Suddenly, fetal legal personhood was no longer a speculative idea put forward by the fundamentalist pro-life fringe, but a viable prospect, and I was fielding interview requests from local and national radio and TV stations. Again, I thought of Lindy Chamberlain, but this time I had to speak both in my personal and academic capacity. I suspect many journalists initially found me a contradiction in terms: a bereaved mother who didn’t want her child recognised as a legal person (at least while in utero). They were compassionate, though, and curious, which I was thankful for. And this was exactly the paradox I wanted to talk about—the limited usefulness of legal personhood for defining who was ‘human’, and the gap between diverse understandings of the emotional or relational personhood of the fetus, and the law’s need to set more universal definitions and minimum standards.
In the months after the lower house vote, I was invited to speak with a number of members of the New South Wales upper house, along with the Australian Medical Association and Family Planning NSW. We sat on couches in MPs’ offices, while I told my story, and the stories of women in juridictions allowing for fetal legal personhood—women like Melissa Rowland and Bei Bei Shuai.
We urged caution in passing legislation that could have unpredictable impacts on women’s access to all kinds of medical treatment while pregnant, and on their ability to make decisions regarding pregnancy and birth. We talked about Angela Carder, a pregnant woman dying of cancer in Washington DC in 1987, who against her will was subjected to a caesarean at 26-weeks gestation because a court found that ‘the state has [an] important and legitimate interest in protecting the potentiality of human life’. Her daughter died within two hours of the operation, and Angela two days later.12
We talked about Marlise Muñoz, who in November 2013 was declared brain dead in Texas, but was kept on life support machines against her express wishes and those of her family because she was fourteen weeks pregnant at the time. The hospital believed it was bound to do so by the Texas Advance Directives Act, which states that, ‘A person may not withdraw or withhold life-sustaining treatment … from a pregnant patient.’13 It was over two months before Marlise’s husband was able to obtain a court order both requiring the hospital to turn off the machines and holding that ‘lifesaving measures’ could not apply to brain-dead patients. Like my body, Marlise’s had held both life and death, but in the reverse order. A ‘fetal personhood’ approach would suggest that the two scenarios were the same, that pregnancy involved two persons, and just because one person died, that did not require the death of the other. This was a version of pregnancy alien to that I had experienced, in which the embryo/fetus makes itself known in the early stages much as a virus would (via queasiness and weariness) and gradually accretes into a presence—not of an equal or a rival for control of my body, but of a small vulnerable being, for which I was completely responsible. When my daughter’s heartbeat stopped and her brain went quiet in my womb, my survival did not require the artificial continuation of her breathing and blood circulation.
There are so many kinds of unenviable decisions to make, and being pregnant means it is impossible to separate a decision made for yourself from a decision made about your fetus. It is easy to feel cynical about politicians from a distance, but the representatives we met with took their parliamentary roles seriously, and were intent on learning as much as they could about the potential repercussions of treating a baby in utero as a legal person.
In early 2014 there were rumours there would be an upper house vote on the Zoe’s Law bill, but numbers seemed to be shifting against it, and the bill’s sponsors held off. In February, the bill’s sponsor in the lower house, Chris Spence, stood down from parliament to face allegations before the Independent Commission Against Corruption, shortly to be followed by the bill’s sponsor in the upper house, Marie Ficarra.
Meanwhile, in October 2013, a drug-affected driver misjudged the lanes on a bridge in Dapto, New South Wales, and ploughed into a hatchback containing the 32-weeks pregnant Jacqueline Sparks and her brothers. Jacqueline’s uterus ruptured on impact, resulting in her daughter being stillborn and the loss of Jacqueline’s uterus. After the driver who caused the accident was sentenced in October 2014, Jacqueline and her partner, Chi Nguyen, called for the New South Wales Parliament to pass the Zoe’s Law bill, which had been languishing in the upper house for nearly a year. Despite their appeals, in November 2014, the Zoe’s Law bill lapsed without ever having been voted on in the upper house.
In the years since the vote, the accidents, and the headlines keep coming.14 Brodie Donegan continues to agitate for legislative change, stating in 2016, ‘I believe that the current laws must be improved to adequately reflect the loss of the unborn child due to a serious criminal or violent act and acknowledge the impact that has on the entire family, rather than keeping the loss within the mother’s injuries.’15 Fred Nile introduced a new ‘Zoe’s Law’ Bill to the New South Wales Upper House in April 2017, again without permission from Zoe’s parents to use her name. Meanwhile, the decriminalisation of abortion, which was delivered in Victoria in 2008, appears stalled in New South Wales. While abortion remains on the criminal code, a Zoe’s Law-type bill is likely to throw the legal status of abortion in New South Wales into confusion, with the possibility of health professionals withdrawing their provision of services, for fear of criminal charges. Meanwhile, a Queensland mother whose daughter was stillborn in similar circumstances is agitating for a Queensland version—‘Sophie’s Law’. She wants ‘all babies past 30 weeks gestation to have the right to be classed as a human being’, but specifies that she does not ‘want to affect a woman’s right to abortion or have a pregnancy terminated for any medical reasons’.16
There is a persistence here—in the women who want their and their family’s loss acknowledged, in strong public support for their campaigns; and in the heartbreaking frequency of pregnancy loss resulting from criminal behaviour, particularly driving offences. This issue is not going to disappear of its own accord. Their babies’ names haunt us. And this, I guess, is partly the reason these families persist with their campaigns to c
hange the law. Our babies’ names did not end up on child care waiting lists, on school rolls, on excursion slips or birthday invitations. If anyone but our loved ones is to remember them, it is up to us. We do not want their names, their little lives and the big dreams we had for them to die with us. If we have to live without them, we want something to come of this grief—that it might reduce the chances of other babies and families suffering a similar fate, or at least of suffering the indignity of the loss of their child being treated as an ‘injury’. But the last thing I would want my daughter remembered for would be for laws that had the effect (intended or not) of winding back women’s reproductive rights and ability to access medical treatment during pregnancy. Or, worse still, laws that flattened the complexities of pregnancy, maternal health, and addiction into two categories: ‘bad mothers’, who should be punished for potentially harming their babies in utero; and ‘good mothers’, who were willing and compliant gestators, always prioritising fetal life above their own.
30
Holding the torch
I had such good intentions in writing this book. I wanted to give something to newly grieving parents, to say, You are not alone in this devastated landscape. There are so many of us here with you, and, despite the devastation, this is still a beautiful place. We have walked it. Here is my fragile map, here is where the path emerges, here is how the parts relate to one another. It is frightening, it is painful; yet, it also inspires awe in its devastation. Unexpectedly exquisite things grow here, things you would never know about had you not set foot in the devastation. And if you can keep putting one foot in front of the other, the mud firms into a path beneath your feet, rains wash away the dirt from your body, you find debris from which to build a shelter, and, after a time, you start to notice small signs of life.
What I’d forgotten, of course, is that in the beginning, you can’t see any of that because your eyes are so puffed with tears that they can hardly open. Even if you can open them and blink away the salt, you’d have to peel your hands from your face, the hands that are the only things keeping your head from hitting the floor with a dull thump. I am remembering all of this because we have, this week, been ordered back to that devastated landscape.
My sister’s firstborn baby girl blows bubbles in her sleep, wrapped in layers of flannel, tubes and cords intruding on her soft skin. Her condition doesn’t have a name yet; letters and numbers hover menacingly above her clear perspex box like a fatal bingo call. Whatever the ultimate order of the numbers, the real damage is being done in her cells, where her mitochondria—tiny molecular engines within each of her cells—are stalling. Not all of them, and not all at once, but for each one that stalls (one test says 78 per cent, but that may just be of her blood cells), a cell is deprived of the energy it requires for muscle activation, for digestion, or for production of proteins. Whatever the cell’s purpose, it is short-changed, and her body has to work harder to achieve the same result.
She frowns, sighs wearily. Her blood shows high lactate levels, as though she is running a half-marathon rather than just lying there. Her heart is working so hard, it is enlarged, stretched. Sometimes it too gets tired, and slows. Alarms go off, the nurse comes. She presses the button quickly, then loosens the flannel layers, talks gently to her—‘Hey, little one’—turns her on her side, and pats her small bottom firmly until the numbers on the heart rate monitor rise, and we all start to breathe again.
It has already been such a hard road for Mia, my tiny flannel-wrapped niece. An early evacuation from my sister’s womb due to her alarmingly small size, then a transfer to the Children’s Hospital with a gut infection and a heart murmur; so much prodding and poking as the doctors cajoled the secrets of her illness out of her body.
And now that they are decoding those secrets, it looks like it will be a short road too. At first they said she might live to two; then twelve months, if she’s lucky. Even that may be optimistic.
So here I am, back in the wasteland, making the same wordless sounds, stepping through the familiar script of denial, anger, sadness, magical thinking. The pain doubles when I think of my sister and her pain, of her and my brother-in-law’s tenderness with their fragile little daughter. Could this really be coincidence? That my mother, my sister and I all lose our firstborn daughter? I know that this is magical thinking, I know that these losses are pure dumb misfortune, but that doesn’t stop my brain spinning theories, trying to construct sense from the senseless, to find a plot line or a moral for the story.
I hold my sister tight. Sob into her shoulder and try to hold firm for her sobs. I want to give my sister all that she gave me in my most broken hour, I want to give her everything I wish I’d known. But, despite the familiarity, this is a different wasteland. My map turns to soggy tissue in my hand.
I tell my law students that the value of a good set of study notes isn’t the content. You can have the most accurate and concise notes but they won’t help you a bit if you haven’t developed them (or at least worked through them) yourself. The value is in the process of boiling down notes into summaries, of banging your head against the law, getting confused and then getting a little bit clearer. Grief is the same. I can spill the beans on what makes sense for me—on the mechanics of my beliefs about where Z is, how I honour her in my day-to-day life, how I let the grief move through me, like a sneeze, when it appears these days, intense but short-lived. Whatever your loss, I want to make it easier for you, to help you short-cut through the pain and the banging of one’s head against the finality of death. But my mechanics work because I have crafted them for my own head, custom-built them around my irregularly shaped heart. Yours will be different. Just know I am here with you, holding the torch.
She was cremated, you see
Not many people
have a baby daughter who is a star.
The light and heat released
with her little five pound eight body
is still travelling
through the heavens
will bounce,
and one day light upon
someone’s eye
as the light from a star.
Not many people (I like to think)
have a baby daughter who is an ocean
(and at the same time, rain).
Her water atoms
went up like a mist
found new friends
among the atoms
of other babies
grandmas
well-loved dogs.
And though it was scary to fall
(as rain)
when they hit the ocean
it felt like home.
(I like to think) Not many people
have a baby daughter who is a ballerina-shaped fuschia bud.
Her nutrients—every molecule that made
her soft skin
her fingers grip
has gifted itself to the earth
(I wouldn’t have been so generous)
except for a few of the most beautiful
which circulate still in my blood.
‘You have a daughter,’ they say
each time they get pumped through my heart.
‘You have a daughter,’ they say
as they tend my broken cells.
The others
(there are millions)
find themselves
pulsing along a green stem
willing a bud to open,
feeding the thing that colours the petal,
scenting the pollen dust,
unfurling the leaf.
Are chewed on or breathed in by
living things,
And find a new home in them.
She is here.
Here.
Here a thousand times but also everywhere.
She makes me weep
at how clever and beautiful she is
And at my own small flimsy wish
For a more conventional baby.
(Still her—but here in the more conv
entional way)
It takes a very still
clear nightful of stars
or a big stormy oceanful of ocean
for me to know
(again, as I’ve always known)
how many babies it takes
to make up the sky.
Cremated and uncremated.
Missed and kissed.
Sung to and unsung to.
Innumerable,
visible
and each such a particular
little pinprick of light.
(August 2011)
Acknowledgements
With each ripple that the accident sent into our lives, I was lucky to have loved ones and strangers offering kindness and support—from the people who stopped to help and called the ambulances, the emergency workers who freed me and got us all to hospital, all the health care providers (even the physiotherapists) who worked hard to help us survive, heal and grieve, to the friends who moved furniture for us, brought us food, sent gifts and good thoughts and who continue to remember our daughter with us. My midwives (and now dear friends) Jen and Mandy—what incredible work you do, and what a difference you made!
Special thanks go to my family, particularly Mum, Dad, Erica, Jeremy, Deb, Jazzie, Jackie and Rima, as well as Penelope Goodes, for being there both in the living and the writing, every step of the way. I love you all so much and I’m so thankful you are in my life.
Belinda Quantock, Steve Macmillan, Matt Drummond, Rosalind Hearder and Samantha Kimpton and Sabdha and Cristi Pink-Charlton—thank you for providing friendship, encouragement, practical help and sage advice.
So many of the insights that made our loss bearable came from other baby lost parents who I’ve come to think of as my ‘dead baby parents group’, both at the SANDS Thornbury group and online, particularly Angie, Sally, Catherine, Merry, Jeanette, Kate, Sarah and Kate. As sorry as I am that we have this in common, I am so glad I found you. Karin and Ned, thank you for letting me tell a piece of Albie and Esther’s story, and Brigette, for sharing your experience with Sacha.
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