Two current legislative initiatives (in New South Wales and the Northern Territory) are trying to address this issue – from two distinct perspectives. In both cases, lawmakers are considering giving legal status to the fetus.
These approaches risk calling into question decades of hard-won victories for abortion rights. A better way to enshrine children’s freedom from future disability is to protect them from actions that will cause harm.
NSW and NT attempts
In New South Wales, “Zoe’s Law” has passed the lower house and is about to be debated in the upper house. The proposed legislation is an example of a fetal personhood law, whereby the fetus is considered to be a person and harming it leads to a criminal sentence.
Zoe’s Law was created in response to the death of a 32-week-old fetus, who died when a minivan driven by a drug-affected driver left the road and hit her mother.
Under current laws, the driver can’t be prosecuted directly for killing Zoe. Instead, he was convicted of causing grievous bodily harm to Zoe’s mother and sentenced to nine months in jail.
The law seeks to remedy the fact that Zoe’s loss of life wasn’t recognised separately from her mother’s.
On the other side of the country, the Northern Territory government is considering legislation based on the rights of the unborn child.
The proposed legislation would see pregnant women prosecuted or restrained if they drink alcohol because it can lead to fetal alcohol spectrum disorders. This group of conditions has a range of effects that may include physical, behavioural and learning problems.
Fetal alcohol syndrome represents the severe end of these disorders. It can result in abnormal facial features, growth problems and central nervous system problems. In Australia’s Kimberley region, half of all babies are born with disabilities that fall under fetal alcohol spectrum disorders.
Opponents of these initiatives are concerned that such laws open the door to ascribing a right to life to the fetus. That could recriminalise abortion. But failing to have laws that address preventable harm to the future child seems to omit acknowledging an important wrong.
The future child
Instead of ascribing rights to the fetus, or “unborn child”, and creating “fetal personhood laws”, a better way to remedy these wrongs is to recognise the rights of the future child.
In this framework, when a child is born with brain damage from drugs ingested during pregnancy or because of a car accident, it’s because of wrongs against that future child. After all, the child has been harmed by the actions as well as, in some cases, the mother.
If I were to dispose of a toxic chemical that leached out of its container and affected a child’s development in five years’ time, I would be guilty of a crime even though the child may not even be conceived because my actions now will affect that future person.
Similarly, in cases where a pregnant woman knowingly ingests a toxin that affects a future child, she would be held to account for that wrong. While the fetus is not a person, in cases where actions don’t end its life but damage it, there may be an offence against a future person.
Importantly, a law focused on the rights of the future child would have no implications for abortion. If you believe (as current laws assume) that the fetus is not a person, then abortion merely prevents a future child from coming into existence.
Women could safely choose to terminate their pregnancy since a fetus would not be a person in the eyes of the law. The actions a woman takes, or consents to, which terminate a pregnancy do not harm any future person – they prevent one coming into existence.
Time for action
The interests of children who will exist in the future are of great moral importance, and need to be given priority. Actions taken today that cause harm in the future are as wrong as if that harm were realised today.
All of society is responsible for foreseeable, avoidable harm, and our primary focus must be on education and preventative measures. But failing that, there should be a law that makes people who harm future children accountable.
Whether or not they believe the fetus is a person, most people can support introduction of strategies to prevent harm to future children. No one should be free to inflict harm on future children, and it’s time we created laws to ensure they don’t.
Professor Julian Savulescu is a distinguished visiting professor in the Faculty of Arts at Monash University and a professor of practical ethics at Oxford University.
Lachlan de Crespigny is a Senior Research Associate in the Uehiro Centre for Practical Ethics at University of Oxford.
This article originally appeared in The Conversation.