The debate over whether or not a fetus is legally a "person" has been reignited in NSW by veteran Christian Democratic Party politician Reverend Fred Nile.
Nile first proposed a bill that would make it a crime to harm or destroy a fetus in June 2013, as part of a vote swap deal with the then Liberal premier Barry O'Farrell. It was introduced by Liberal MP Chris Spence in August 2013.
Titled the Crimes Amendment (Zoe’s Law) Bill 2013 (No 2), it was put to a conscience vote in November 2013 and passed through the NSW lower house by 63 votes to 26.
However the bill lapsed in November 2014 after delays in debating the changes in the NSW upper house.
Now Nile has resurrected the controversial legislation, which would make it a crime to harm or destroy a fetus, punishable by a jail term of up to 10 years.
The wording of the new bill, known as "Zoe's Law", is exactly the same as the previous bill.
The legislation was named “Zoe’s Law” in honour of Sydney woman Brodie Donegan who was hit by a drug affected driver in 2009. Her unborn child, named Zoe, died at 32 weeks. The driver could not be charged with Zoe’s death but was charged with grievous bodily harm to Donegan.
Ahead of the upper house vote in 2014, women's rights groups and legal and medical associations raised concerns about the impact on abortion laws of giving a fetus legal personhood.
The staunchly anti-abortion Nile was accused of exploiting Donegan's tragedy to further complicate the legal status of abortion in NSW, where the procedure is still in the crimes act, and only lawful if a doctor believes it is necessary to prevent serious risk to the life or health of a woman.
Donegan has told Fairfax Media previously she did not support Nile's bill.
When introducing the bill last week Nile said the claim that it was an "anti-abortion bill" was a "red herring".
"This bill specifically states it has nothing to do with abortion or a termination of a pregnancy," he told the parliament.
There is a clause in the bill which specifies that harming a "child in utero" does not include "anything done in the course of a medical procedure" or anything done with the consent of the pregnant mother.
But medical and legal networks are still not convinced that Nile's latest move isn't a renewed bid to restrict reproductive rights.
"The current law is adequate and it fairly and properly deals with criminality when someone intentionally or unintentionally harms a pregnant woman and harms the fetus," Law Society of NSW president Pauline Wright told BuzzFeed News.
"The court has held that the fetus is part of the mother, so if an unborn fetus is injured or killed in an accident or assault, it forms an aggravation of the offence and the person is punished accordingly."
Fetal personhood would be a "really significant change" to the law in NSW, Wright said.
"No matter how much Fred Nile says it is not about abortion it would become about abortion," Wright said.
"If you start trying to distinguish a fetus from an unborn child it would result in injustice in sentencing."
The bill was at odds with other legislation to decriminalise abortion in NSW which will be debated this year, she said.
"If you've got legality of abortion on the one hand, and then calling a fetus an unborn child on the other hand... those things are inherently contradictory."
Royal Australian and New Zealand College of Obstetricians and Gynaecologists president Dr Steve Robson told BuzzFeed News the legislation is "just a Trojan horse".
"It is a mistake to support legislation that is merely a thinly disguised Trojan horse to interfere in the doctor-patient relationship for religious reasons. To add any threat of ambiguity about criminality is such a dumb retrograde step."
Robson said there was already a "lack of clarity" about the legal status of abortion in NSW and that Zoe's Law would mean women "will not know where they stand and which bit of legislation applies".
"I completely agree with the concern about harm to an unborn baby from assault, and I have enormous sympathy for an agonising and awful situation, but there needs to be a clear distinction between medical activity and malicious activity."
Gina Rushton is a reporter for BuzzFeed News and is based in Sydney.
Contact Gina Rushton at email@example.com.
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