How does the law respond when unborn children die?

Five years ago, Jeremy Stodghill sued a Catholic hospital after his pregnant wife Lori died suddenly of a pulmonary embolism.

He sued them not just over the wrongful death of Lori, but also the couple’s twin babies.

The hospital argued that foetuses, having not yet been born, did not have legal status. The hospital won – causing a massive uproar, as their argument obviously contradicted the Roman Catholic church’s longstanding teaching that life begins at conception.


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Tragically, it’s a conversation being had in Australia right now after the devastating death of Sydney mother Katherine Hoang, who was killed in a car accident in Sydney’s west last Friday night.

Her unborn twin boys, who were due this week, also died. Yet the driver of the car that allegedly caused the accident, has not been charged with the babies’ deaths.

“These babies were already part of the family,” argued relative Lucy La; she rightfully wants to see the driver charged with their loss as well.

It is an incredibly complex issue, and the laws that apply when unborn children are killed vary across Australia.

In NSW, fetal homicide laws have been debated in parliament a number of times, after Zoe’s Law was introduced for debate in 2013 following the case of Brodie Donegan. Brodie’s unborn baby Zoe was killed after their car was hit by a drug-affected driver; Brodie was 32 weeks pregnant, and instead of the driver being charged with the death of her baby, Zoe’s loss was only reflected as part of the injuries sustained by her mother.

Zoe’s Law has failed to pass because opponents worry that fetal homicide laws, in recognising that an unborn child as having a separate legal identity to its mother, will create potential implications for abortion laws and the legal rights of pregnant women.

But 20 years of a proven track record in Queensland seems to fly in the face of this fear. We introduced specific foetal homicide laws back in 1997, under which the driver could be charged with the separate offence of killing an unborn child – a crime that carries a maximum penalty of life imprisonment. There is also a separate offence of “killing an unborn child”, which applies “when a woman is about to be delivered of a child”.

It doesn’t happen often, but for once, it seems that in Queensland we are well ahead of the curve. If these laws existed in NSW, Katherine’s family’s grief would not be any less; but at least they would know that the law fully recognises their complete loss.

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