Loss of Unborn Child Laws come into effect
NSW is the first jurisdiction in Australia to have standalone offences for criminals who cause the loss of an unborn child.
Previously, if an unborn child was killed as a result of a criminal act, it was classified as an injury to the mother and there was no standalone charge for “causing the loss of the foetus”.
Two new offences recently came into effect under the Crimes Legislation Amendment (Loss of Foetus) Act and impose significant custodial penalties on offenders as well as a number of measures to provide greater support to expectant parents.
The first offence (Causing the loss of a foetus) applies to a wide range of criminal acts such as dangerous driving causing grievous bodily harm, that leads to the death of an unborn child, but the mother survives. This carries a maximum penalty of five to 28 years imprisonment.
The second offence (Causing loss of a foetus and death of a pregnant woman) applies when an unborn child is lost, and the pregnant woman is killed due to a third-party criminal act. Offenders will serve a maximum of three years in prison for the loss of the foetus, in addition to the maximum penalty for the homicide offence.
Both of these offences are applied where the foetus was at least 20 weeks or 400 grams weight.
Under the new laws, improved support and recognition is also available to parents who lose an unborn child of any age as a result of a third-party criminal act. These include:
- Family members being able to make a victim impact statement that may be taken into account by the Courts when sentencing offenders;
- Families can claim funeral costs for the loss of an unborn child caused by a car accident; and
- Families can also claim a one-ff $3,000 “bereavement payment” to assist with counselling and support services.
The two new laws came into effect following unwavering advocacy by victims, including expectant mothers Brodie Donegan and Jacqueline Sparks, who both lost their unborn daughters after incidents involving drug affected drivers.
Brodie Donegan lost her unborn baby Zoe at 32 weeks pregnant after she was hit and pinned under a van by a drug affected driver in 2009.
In 2014, Jacqueline Sparks lost her unborn child Mia at full-term after she was hit in a head-on vehicle collision by a drug affected driver. The accident ruptured Ms Sparks’ uterus, leaving her unable to bear children.
While the new laws cannot repair the harm and distress caused in such horrific circumstances, the reforms better acknowledge the heartbreak suffered by families and hold offenders more appropriately to account through stronger sentences.
If you need more information or have an enquiry in relation to these new laws, please contact Ken Gray on 02 4731 5899 or email us at litigation@batemanbattersby.com.au.