Baby Lost

An extract from “Baby Lost”

There is only one place to start this story — the point where all the ripples start, the moment of impact. Everything circles around that. I replay this moment often. There we were, buckled in and travelling north on a suburban arterial road in Melbourne’s south-east around 5.40pm, two days after Christmas. We were not a conventional family for all kinds of reasons — two mums (one Lebanese, Rima; one a ‘skip’, me), with Rima’s teenage daughters from her previous marriage (Jackie and Jasmin) and our long-awaited donor-conceived baby on the way — but it was the most ordinary of family car trips. We were heading home in the station wagon after visiting my cousin to drop off belated Christmas presents. It was Sunday, December 27, 2009.

I was driving with Rima next to me in the front passenger seat. We’d been listening to the cricket, and I said to Rima, ‘Hon, can we change this? Listen to some classical music for Haloumi?’ Haloumi was our nickname for the baby that bulged in my eight-months-pregnant belly, which had been hiccupping all morning. But Rima didn’t reply.

In the oncoming traffic, a four-wheel-drive had hit the car in front of it and was swinging sideways onto our side of the road. I braked. I pushed with my arms and my legs, and the tiny hairs on my arms and legs, to try to push that car away from my family and me, and the little one curled in my belly.

We stopped moving instantly and I could hear myself yelling and thought, ‘Too late for that’ and shut my mouth so hard that my teeth chipped against one another. I turned the engine off and looked at Rima — lovely, alive Rima, though she was screaming too by now. I could hear the girls screaming behind us, and though I couldn’t turn and see them, I knew they would be hurt but OK.

I couldn’t move — the car was crushed in around my legs. My thoughts sliced through the slow-moving time around us. The ambulances would come, they would unfold this car around me, my baby might have to arrive a little early but would be OK. Thirty-four weeks — this child would already be so strong. ‘Viable.’ Isn’t that right, Haloumi?

At hospital I was parcelled from ambulance to examining table in a series of clicks, rolling wheels, and an efficient one-two-three. I could hear the doctors talking in the corner. They had wheeled the ultrasound machine in, after every man and his dog had tried to get a foetal heartbeat with the Doppler machine, and then another Doppler with new batteries. I knew that if they’d seen a heartbeat there would be reassurances, smiles. I was still waiting. I still had my hand on my belly, now sticky with ultrasound gel. They’d had to move my hand during the scans. They did it gently, and I edged my fingers back each time, feeling softly for those little heels.

A doctor came to me and introduced himself. He had thick white hair, a bow tie and, worst of all, a concerned look. ‘I understand you’ve been told?’

‘No, I haven’t.’ Don’t tell me. Don’t tell me. But I found myself saying helpfully, ‘You haven’t found a heartbeat, have you?’ It mustn’t be easy to break this kind of news to women. I felt sorry for him.

‘No.’ There were words after that, coming out of his mouth like a speech bubble — about being induced, about labour — but I couldn’t match them with any meaning. Someone had called my mum; I could hear her voice. ‘We’ve lost our Haloumi,’ I said into space.

Rima and the girls had been sent to different hospitals so I had to tell her over the phone that Haloumi hadn’t made it. It wasn’t until the next day that she was able to discharge herself. She appeared at the door of my ICU room, her broken hand in a sling, still wearing a hospital gown tucked into her brother’s tracksuit pants. I was holding our daughter in my arms. I asked Rima what we should name her. She gently pushed the question back to me. Zainab was the name that tumbled out of my mouth. ‘Yes, Zainab,’ she said, without taking her eyes off our baby’s face.

We made a deliberate decision after the accident not to invest too much in the criminal proceedings against the driver who caused our accident. I’d seen enough in my time as a litigator that I didn’t expect a lot in the way of resolution, let alone healing, from the court process. That work lay elsewhere.

The police officer handling our case said it was clear that it hadn’t been the four-wheel-driver’s fault. The collision had started with an older model Commodore whose driver, a uni student, had been involved in some kind of road-rage altercation with another car. He was charged, and pleaded guilty to five counts of dangerous driving causing serious injury (one each for me, Rima, Jasmin, Jackie and the driver of the Pajero) and one count of failing to stop at the scene of the accident. Because Zainab was stillborn there was no charge for ‘dangerous driving causing death’.

Two and a half years later, in mid-2013, several Sydney friends got in touch about the proposed ‘Zoe’s Law’ bill before the NSW Parliament. Zoe was the name Brodie Donegan and Nick Ball gave their baby daughter, stillborn at 32 weeks’ gestation on Christmas Day 2009 after Brodie was hit by the drug-affected driver of a van, just two days before our accident. As in our case, because Zoe did not show any signs of life when she was born, the driver could only be charged with dangerous driving causing grievous bodily harm — to Brodie, not Zoe. For Brodie and Nick, this quirk of legal personhood meant that they felt that Zoe’s life was never ‘acknowledged or taken into account’.

When they took to the media to campaign for a change to the law to recognise Zoe and other stillborn babies as legal persons for the purposes of the criminal law, it was Christian Democrat politician Reverend Fred Nile who acted first. Without consulting Brodie and Nick, Nile used their daughter’s name to introduce a private member’s bill that would create a new offence of ‘causing serious harm to or the destruction of a child in utero’.

To claim back their daughter’s name, Brodie and Nick worked with their local member, Chris Spence, to launch their own private member’s bill. It was more circumspect than Nile’s, which had pro-life undertones, but nonetheless sought to define a foetus as a legal person for the purposes of particular offences. I’d been livid in January 2010 when a pro-lifer had sought to use our case to suggest that ‘permissive abortion laws’ were to blame for the law’s failure to recognise the distinct harm of losing a wanted pregnancy due to someone else’s violence or reckless driving. I had been deep in my grief then, and wasn’t ready to cross the chasm between my grieving heart and my brain’s capacity for legal reasoning.

When I revisited it all in late 2013, the thing that bothered me about the debate was that it had been reduced to polarised understandings of pregnancy. Either you were pro-choice, and opposed Zoe’s Law because it sought to extend legal personhood to foetuses; or you saw the foetus as a ‘baby’, and therefore all babies, whether in or outside the womb, should be ‘worthy’ of legal personhood, even at the expense of the legal personhood or basic human rights of their mothers. In that shallow dichotomy, I could be a feminist or a grieving mother, but not both.

When I started researching other jurisdictions that had created criminal offences around foetal deaths in utero, what shocked me was how often such laws were used to prosecute the pregnant women themselves. These were women like Melissa Rowland. Pregnant with twins in Utah in 2004, she had initially refused to consent to a caesarean section delivery and was subsequently charged with murder when one of her twins was stillborn. On a plea bargain, the prosecutor dropped the murder charge in return for her pleading guilty to child endangerment. Nina Buckhalter and Rennie Gibbs were Mississippi women also charged with homicide offences when their babies were stillborn. Prosecutors argued that the women’s illegal drug use amounted to manslaughter by culpable negligence, in Buckhalter’s case, and ‘depraved heart murder’ in Gibbs’ case. Both indictments were eventually dismissed, but only after consuming years of these young women’s lives.

I thought of these women and the hospital rooms where they had held their babies, feeling their cheeks grow colder. I thought of how broken we were in that moment, and imagined that vulnerable space suddenly crowded by police with accusing looks, taking away our child’s body as ‘evidence’ against us. I sat down and nutted out a short article for The Conversation website, November 18, 2013: ‘Why losing my daughter means I don’t support Zoe’s Law’. …Is foetal legal personhood the best way to recognise the particular harm of losing a much-wanted pregnancy due to someone else’s violent or careless act? As a feminist legal academic, I have professional insight into the prospective law; I also have personal insight as a mother who lost her unborn child in a car accident …

Legal personhood is a technical category that sometimes includes non-humans, such as corporations. Its purpose is not to define human life but to enable an autonomous interaction with the law. Legal personhood doesn’t make sense for a baby in utero. The physical reality of pregnancy means that the baby is the opposite of autonomous — it depends completely on the mother and is completely contained within her body until birth. While inside the mother, a baby is covered by her legal personhood. Birth is the moment of separation. I have no doubt that my daughter was a person — but I am comfortable with the idea that, at the time she died, she was protected by my legal personhood rather than her own.

Once the foetus is defined as a legal person, the law has a direct relationship with it, and the mother’s consent becomes irrelevant … As a pregnant woman, what you choose to do with the life within you is a huge moral decision. But you are the best person to make that decision. For anyone to take that decision out of your hands, whether to insist that you continue with a pregnancy or to terminate a pregnancy against your will, is a violation. It goes beyond pain and physical injuries — it violates the mother’s decision for her own body and for any potential child.

It is this violation that I would suggest would be a much more effective base for a law recognising the harm Brodie Donegan and I experienced. This could involve, for example, a specific offence addressing conduct that ends the life of a foetus without the mother’s consent. A law that frames forced pregnancy loss as a specific offence could acknowledge the family’s suffering in cases like mine and Brodie’s — and protect reproductive autonomy.

Just three days after the article was published, the bill passed the Lower House by 63 votes to 26. Suddenly, foetal legal personhood was no longer a speculative idea put forward by the fundamentalist pro-life fringe but a viable prospect, and I was fielding interview requests from local and national radio and TV stations. I had to speak both in my personal and academic capacity. I suspect many journalists initially found me a contradiction in terms: a bereaved mother who didn’t want her child recognised as a legal person (at least while in utero).

In the months after the Lower House vote, I was invited to speak with a number of members of the NSW Upper House along with the Australian Medical Association and Family Planning NSW. We sat in MPs’ offices while I told my story and the stories of women in jurisdictions allowing for foetal legal personhood. I urged caution in passing legislation that could have an unpredictable impact on women’s access to all kinds of medical treatment while pregnant, and on their ability to make decisions regarding pregnancy and birth.

We talked about Angela Carder, a pregnant woman dying of cancer in Washington DC in 1987, who against her will was subjected to a caesarean at 26 weeks’ gestation because a court found that ‘the state has [an] important and legitimate interest in protecting the potentiality of human life’. Her daughter died within two hours of the operation and Angela two days later. (Three years later, the decision was overturned — too late to undo the doctors’ violation of a dying woman’s decision, but setting a precedent within the state that a competent patient’s decision must be adhered to in ‘virtually all cases’.)

In early 2014, there were rumours there would be an Upper House vote on the Zoe’s Law bill, but numbers seemed to be shifting against it and the bill’s sponsors held off. Meanwhile, in October 2013, a drug-affected driver misjudged the lanes on a bridge in Dapto, NSW, and ploughed into a hatchback containing the 32-weeks pregnant Jacqueline Sparks and her brothers, resulting in Jacqueline’s daughter being stillborn and the loss of her uterus. After the driver who caused the accident was sentenced in October 2014, Jacqueline and her partner, Chi Nguyen, called for the NSW Parliament to pass the Zoe’s Law bill, which had been languishing in the Upper House for nearly a year. Despite their appeals, in November 2014 the bill lapsed without ever having been voted on.

In the years since then, the accidents and the headlines have kept coming. Brodie Donegan continues to agitate for legislative change. Fred Nile introduced a new Zoe’s Law bill to the NSW Upper House in April, again without permission from Zoe’s parents to use her name. Meanwhile, the decriminalisation of abortion, which was delivered in Victoria in 2008, appears stalled in NSW. While abortion remains on the criminal code, a Zoe’s Law-type bill is likely to throw the legal status of abortion in NSW into confusion, with the possibility of health professionals withdrawing their provision of services for fear of criminal charges.

In Queensland, a woman whose daughter was stillborn in similar circumstances is agitating for a ‘Sophie’s Law’ in that state. She wants ‘all babies past 30 weeks’ gestation to have the right to be classed as a human being’, but specifies that she does not ‘want to affect a woman’s right to abortion or have a pregnancy terminated for any medical reasons’.

There is a persistence here — in the women who want their and their family’s loss acknowledged, in strong public support for their campaigns; and in the heartbreaking frequency of pregnancy loss resulting from criminal behaviour, particularly driving offences. This issue is not going to disappear of its own accord.

The last thing I would want my daughter remembered for would be laws that had the effect (intended or not) of winding back women’s reproductive rights and ability to access medical treatment during pregnancy. Or, worse still, laws that flattened the complexities of pregnancy, maternal health and addiction into two categories: ‘bad mothers’, who should be punished for potentially harming their babies in utero; and ‘good mothers’, who were willing and compliant gestators, always prioritising foetal life above their own. Whether a law can be drafted that finds this balance — between accurately addressing our loss and protecting reproductive rights — is yet to be seen.

This is an edited extract from Hannah Robert's book Baby Lost.

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