Poppy Morandin and Jimmy Singh.
Warning: Distressing Content
An unborn baby has died after its father allegedly cut open his wife’s stomach with a sickle.
The alleged attack led to the woman giving birth to a stillborn boy.
The family of the woman has stated that the motive behind the attack was that the man wanted to check the unborn child’s gender.
Despite these claims, the man has maintained that the incident was an accident, and he did not intentionally hurt his wife or the baby.
He told local media that he threw the sickle at her but did not realise it would cause such a severe injury, according to the BBC (https://www.bbc.com/news/world-asia-india-54234621).
“I have five daughters, one of my sons is dead. I know that children are the gift of God. Now whatever is to happen, will happen,” he stated.
He has been arrested by police, in the Badaun district in Uttar Pradesh, where the incident took place.
The state is one of India’s most densely populated areas in the north.
The woman is in a stable condition in hospital in Delhi.
India has one of the most skewed gender ratios (https://unu.edu/publications/articles/achieving-gender-equality-in-india-what-works-and-what-doesnt.html) in the world, due to a deeply ingrained societal preference for sons over daughters.
This is partially contributed to norms regarding inheritance and marriage, including the practice of paying a dowry (a sum of money) for female children to be married.
Whereas the World Health Organization reports that the natural sex ratio at birth is 105 males for every 100 females, in India for every 107.6 males born in India, there are 100 females.
It is reported that a majority of couples (55%) will keep having children until they have a son, which has led to over 21 million girls who are classified as “notionally… unwanted,”, as stated by the Economic Survey 2017-18.
Despite sex-selective operations being illegal in India, they are reportedly still available and routinely utilised.
There are furthermore high rates of infanticide, contributing to the statistic that more females die than males in early childhood.
In NSW, violence to a foetus which causes death in utero does not amount to murder or manslaughter as a foetus is not treated as a human being.
Pursuant to section 20 of the Crimes Act 1900 (NSW), a child shall be held to have been born alive if it has breathed and has been wholly born into the world, whether it has had an independent circulation or not.
However, if an assailant destroys or intends to destroy a foetus they may be charged in relation to an offence of ‘grievous bodily harm’.
This is due to the fact that under the Crimes Act, ‘grievous bodily harm’ includes the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm.
Section 4(1) Crime Act 1900 (NSW) defines ‘grievous bodily harm’ has including permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease (i.e. HIV). The common law has defines grievous bodily harm as bodily harm in the ordinary and natural meaning. Grievous means really serious. (Swan v R  NSWCCA 79).
A person who causes grievous bodily harm with intent (https://www.criminaldefencelawyers.com.au/blog/what-are-the-penalties-and-defences-for-grievous-bodily-harm-and-wounding-charges-in-nsw/) to do so, faces a maximum penalty of 25 years in jail.
Last year, the Crimes Amendment (Zoe’s Law) Bill 2019 was introduced into the state upper house in order to propose the creation of a new offence of grievous bodily harm to a foetus.
The NSW Parliament has debated various iterations of the legislation over the years.
If passed the law would have meant that if someone caused destruction or harm to a foetus they would be charged with grievous bodily harm to the foetus, instead of being charged with grievous bodily harm to the pregnant woman.
The bill faced opposition due to the implications it could possibly have on women who have abortions, and the scrutiny it could place on the women who experience a miscarriage, stillbirth, or foetal harm as a result of a criminal act.
Organisations such as Women’s Legal Service NSW did not consider the new law as “necessary or appropriate,” and maintained that “injury must always be interpreted as an injury to the pregnant woman,”.
The debate on the bill remains ongoing.
Have a question on this law topic? call our helpful team. We have criminal lawyers in Blacktown (https://www.criminaldefencelawyers.com.au/criminal-lawyers-blacktown/), Parramatta and Sydney CBD.