In parts of Australia, unborn babies aren’t legally seen as people. Here’s why that needs to change

In October 2023, a Victorian woman, Elodie Aldridge, was driving home from a midwife appointment when her car was hit by a four-wheel drive. Aldridge was 34 weeks pregnant with her son, Remi. She suffered significant injuries including a broken wrist, hip and pelvis. Her son Remi died in utero.

Under current laws in most states and territories, the life of an unborn child is legally indistinguishable from that of the mother. In Victoria, the only criminal charge available for such an offence is “serious injury to the mother”.

If this crash had occurred 50 minutes north in New South Wales, Remi would have been recognised as a legal person and there would have been a separate criminal charge for his death.

Attempts to change these laws in Victoria were recently rejected by parliament. Here’s why these laws should be changed across the country.

When are you legally a person?

Under Australian law, a life is recognised at the point when there is independence from the mother. This means the child becomes a legal person when the child can take its first independent breath, otherwise known as the “born alive rule”. Therefore, unless the child can take an independent breath, the child is not recognised as a legal person and therefore cannot be deemed a victim of the crime of murder or manslaughter.

This legal position is reflected in most jurisdictions in Australia. Victoria, the ACT, the Northern Territory, South Australia, Tasmania and Western Australia do not recognise the life of an unborn child as being separate from that of its pregnant mother.

As a result, any harm done to an unborn child in any of the above jurisdictions could only result in the charge of causing serious harm to the mother.

But it’s a different situation under administrative law. The parents can legally be granted a birth and death certificate for the child. So while there are records of a life created and lost, the criminal law doesn’t see the unborn child as a person.

Legislators and legal scholars in these jurisdictions appear reluctant to recognise the life of the unborn child in utero.

There are fears that doing so will negatively impact reproductive rights or could result in liability for a pregnant mother.

Legal and medical professionals have argued that such laws could have unintended consequences (particularly in jurisdictions where abortions are not legalised) by creating a tension between the rights of the woman to autonomy and self-determination and the rights of the unborn child.

This, in turn, could lead to further marginalisation of vulnerable and disadvantaged women, as has been seen internationally.

While the philosophical issues are unavoidable, the recognition of the legal personhood of an unborn child in particular circumstances need not be in conflict with existing women’s rights and reproductive laws.

The proposed law in Victoria, for example, should only be applied in narrow circumstances: involving the criminal (unlawful) intervention by a third party (not the mother) that results in the death of an unborn child where the child was above 20 weeks gestational age or more than 400 grams in weight.

Exceptions to the rule

There are some states that have made changes.

In 2021, some 12 years after the laws were first introduced to parliament, NSW passed laws that imposed tougher penalties for crimes that result in the loss of an unborn child.

“Zoe’s law” was proposed after Brodie Donegan, then 32 weeks pregnant with Zoe, was hit by a drunk driver on Christmas Day in 2009. The then Attorney-General Mark Speakman said:

these laws give recognition to the unborn children that are lost due to third party criminal acts.

Two offences were subsequently added the NSW Crimes Act: causing the loss of a fetus and causing the death of a pregnant woman.

The death of an unborn child adds an additional charge and penalty of three years more than the maximum penalty under the first offence.

The recognition of the unborn child as a legal person also means the woman or her family members can give victim impact statements in court, and the name of the unborn child can be included on the indictment.

Queensland has also enacted similar laws, although they don’t go quite as far.

Sarah Milosevic was 39 weeks pregnant with Sophie when her car was hit by a driver under the influence in 2014. Sophie died a few days later as a result of injuries sustained in the crash.

The driver was charged and found guilty, but the penalty was a $950 fine. Sophie’s mother campaigned tirelessly for legal change and in September 2023 “Sophie’s law” was passed.

Courts in Queensland are now required to treat the death of an unborn child as an aggravating factor during the sentencing of offenders. The aim is to ensure harsher sentences.

This is in addition to the Queensland Criminal Code, which makes it a crime to unlawfully assault a pregnant woman causing her to lose the child.

While this amendment stops short of recognising unborn children as legal people, it’s at least a step in the right direction.

Call for change

Before the crash, Aldridge had just learned that her son had fully formed lungs. He could arrive healthily any time. She described the heartbreak of discovering Remi wasn’t considered a human being in the eyes of the criminal law.

Failing to recognise the legal status of a unborn child who is killed this way creates significant hardship for families. They’re often already lost in layers of contradictory legal bureaucracy at a very difficult time.

If there can be recognition of legal personhood under administrate law but not under the criminal law, then the legal balance is off and requires readjusting.

NSW faced the same philosophical and moral debates and has been able to pass legislation that successfully addresses concerns. Other states and territories should take note and follow suit.

Legal personhood in Australia should not be determined by postcode.