A Child’s not a Person – when the Law is an Ass

The Queensland Parliamentary Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee continues its inquiry into our State’s abortion laws. Please continue to pray for an outcome that sees the lives of unborn children preserved in Queensland, rather than one that sees the unborn become even more vulnerable.

In reading some of the presentations made by experts to the committee, here, it was no surprise to see legal experts argue for law reform on the basis of the laws pertaining to abortion being outdated and inconsistent with each other. After reading through the relevant articles of the Queensland Criminal Code, I have to agree. The law needs to change, not only because some elements of it are outdated, but because there are some serious inconsistencies between relevant sections. But I don’t agree with the legal experts when it comes to how these issues should be addressed by the Parliament…

Relevant sections of the Criminal Code

The most relevant legislation in the Criminal Code relating to abortion – and the articles Mr Pyne’s bill would completely remove from the Code – are Sections 224-226:

224 Attempts to procure abortion

Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.

225 The like by women with child

Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.

226 Supplying drugs or instruments to procure abortion

Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

 

Causing a miscarriage or attempting to, has been a criminal offence since 1899. Many believe this should change, because 21st century community values don’t consider abortion to be something that should be treated criminally. Many others believe abortion must remain a criminal act, due to the seriousness of its nature: it destroys a human life.

On a practical level, the above sections of the code put some level of restraint on how abortions are carried out – but their use as the basis for criminal investigation and prosecution are extremely rare. Court rulings allow an exemption from any criminal guilt in procuring or performing an abortion when an appropriate medical professional believes there is a threat to the mother’s physical or mental health should the pregnancy be allowed to continue. Thus, we might say that abortion is only technically criminal in QLD – a dissatisfying status quo for activists on both sides of the debate, but seemingly a happy medium for successive pragmatic state governments.

But the massive inconsistencies and outdatedness of the law come when we examine other sections of the Queensland Criminal Code. For instance, the Code treats an unborn child as a human being that can be unlawfully killed in Section 313:

 

313 Killing unborn child

(1) Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, the person would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.

(2) Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime. Maximum penalty—imprisonment for life.

 

Note how the above section treats the killing of the child about to be delivered with the same seriousness as a child who has been born. The penalty of life imprisonment indicates that the law regards the almost-born-child death as substantially equivalent to the death of a newborn child. Likewise, when a pregnant woman is assaulted and the child’s life is destroyed, the maximum penalty of life imprisonment would suggest that something equivalent to murder has been committed.

The massive inconsistency therefore comes in the Code’s dealings with homicide:

291 Killing of a human being unlawful

It is unlawful to kill any person unless such killing is authorised or justified or excused by law.

292 When a child becomes a human being

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.

 

It is Section 292 that is outdated and inconsistent with what we saw in Section 313 above. Our law is inconsistent to treat an unborn child’s destruction as judicially equivalent to murder in one section of the Criminal Code, while holding that an unborn child cannot be considered “a person capable of being killed” in another section. If someone hits a pregnant woman’s stomach with a hammer and the unborn child dies, they are guilty of a crime and liable to life imprisonment under Section 313, but they haven’t actually killed a legally recognised “human being” or “person” according to Section 292. And of course, Section 292 completely removes the basis for any argument that abortion is murder under Queensland law – the unborn child is not a “person capable of being killed.”

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The above sections of the Code and abortion

So the abortionist can only be held to account for criminal conduct under sections 224-226 – the very sections Mr Pyne wants removed from the Code – and only if they cause the miscarriage of a pregnancy without having one of the justifying conditions recognised by the Courts. Removing sections 224-226 will mean that killing unborn children through abortion will no longer be a criminal offence, while killing an unborn child through unlawful assault will carry the same potential sentence as murdering a newborn child or adult citizen.

This will not rectify the inconsistency under the law. Either the killing of any unborn child must be regarded as the killing of a human being (per Section 313, contra Section 292) or the killing of any unborn child must not be regarded as the killing of a human being (per Section 292, contra Section 313). Out of the two, it is Section 292 that should be reformed in light of the values expressed in Section 313 (with Sections 224-226 either being changed positively to reflect this or remain as is).

It has been suggested that Section 292 is a very old legal principle, which existed because of the difficulty in legally proving that an unborn child had been alive prior to an action that is alleged to have caused its death. But it is true that medical advancements render such a principle obsolete. With the current state of obstetrics/gynaecology, ultrasound/radiology technology and forensic science – facts that were previously undiscernible beyond reasonable doubt in relation to the child’s living state can far more easily be established. Not only that: but the weight of medical evidence is in favour of an understanding of human life as beginning at conception.

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And so, when it comes to the legal reality surrounding these issues in Queensland, a child is not a person, when the law is an ass. Section 292 is a dumb, unfounded, archaic and inconsistent piece of law in Queensland. It is a blight on the entire body of law in this State because of its baseless absurdity. Unborn children are human beings and there are no solid legal grounds for not recognising them as persons capable of being killed. Therefore, the best principles of law with respect to unborn children, as embodied in Section 313, should be what shapes the other relevant sections of the code.

Section 292 should be reformed to read something along the lines of:

292 The beginning of a human life

A child is a person capable of being killed, from time of conception and shall be regarded as a human being throughout the embryonic and foetal stages of its development.

 

Sections 224-226 relating specifically to abortion should remain part of the QLD Criminal Code and these sections should be enforced to prevent the killing of innocent life where necessary (on a side note, I favour an approach where the prospect of criminality serves mainly as a legal deterrent towards women considering seeking an illegal abortion, whereas medical professionals or others found guilty performing an abortion would face the full punitive consequences of killing a person under the law). The Queensland Parliament should legislate positively to restrict the ease with which medical professionals can recommend and carry out surgical and chemical abortions. We should be moving away from abortion-on-demand not towards it. Abolition should be the desired outcome, rather than proliferation.

In summary, Parliament should reject Mr. Pyne’s private member’s bill – but it should also act to ensure the law is not an ass by ensuring that a child (born or unborn) is a human being and legal person.

[1] https://www.facebook.com/humancoalition/photos/a.473787345973115.107637.134452023239984/1221895087829000/?type=3&theater

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