Child Destruction

Introduction

Offences of ‘child destruction’ were created to cover situations in which neither the law regarding abortion, or the law regarding murder/manslaughter applies and the death of a ‘child’ in utero (while in the pregnant mother’s womb) is caused by another person.

The child is neither a foetus whose destruction is a lawful or unlawful abortion, nor a legal person whose destruction is murder. 1

Below you will find a summary of the law in each state/territory that has the offence of 'child destruction'.

State and Territory Laws

‘Child destruction’ (named in various ways) is an offence in several Australian jurisdictions.

Note: such laws are controversial, as they may create uncertainty about the stage of pregnancy at which they apply and concern about when abortion laws are relevant. Some have therefore called for the laws to be removed (as in Victoria) or amended to clarify the period of pregnancy and circumstances in which the offence applies.

Click on the links below to go directly to information on a specific state/territory, or scroll down to read them all.

 South Australia           Western Australia           NT           QLD           ACT        Tas   NSW

South Australia

In South Australia, child destruction is addressed within the provisions of the Criminal Law Consolidation Act 1935 (SA) relating to abortion. Section 82A(7) of the Act states that the laws pertaining to lawful abortion:

do not apply to, or in relation to, a person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes such a child to die before it has an existence independent of its mother where it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.

Section 82A(8) of the SA Act provides that evidence that a woman had been pregnant for a period of twenty eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.

Western Australia

In Western Australia s 290 of the Criminal Code creates the offence of ‘preventing the birth of a live child’.

The Western Australian criminal code provides:

 Any person who, when a woman 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.

Northern Territory

In the Northern Territory section 170 of the Criminal Code (NT) creates the offence of ‘killing an unborn child’.

Any person who, when a woman or girl 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, he would be deemed to have unlawfully killed the child, is guilty of a crime and is liable to imprisonment for life.

Queensland

In Queensland, section 313 of the Criminal Code (Qld), provides that

(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.

Australian Capital Territory

In the Australian Capital Territory, s 42 of the Crimes Act 1900 creates the offence of ‘child destruction’ providing that:

A person who unlawfully and, either intentionally or recklessly, by any act or omission occurring in relation to a childbirth and before the child is born alive —

(a) prevents the child from being born alive; or

(b) contributes to the child’s death;

is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

Tasmania

In Tasmania, the Reproductive Health (Access to Terminations) Act 2013 (Tas) resulted in the repeal of s165 of the Crimes Code Act 11924 which made provision specific to causing the ‘death of a child that had not become a human being’.

Section 153(5) of the Criminal Code still provides that ‘the killing of [an unborn child] is homicide if it dies in consequence of injuries received before, during, or after birth.’

NB. Subject to the Reproductive Health (Access to Terminations) Act 2013, s 8, notwithstanding any other Act or law, a woman who consents to, assists in or performs a termination on herself is not guilty of a crime or any other offence. (Termination of pregnancy may otherwise be performed only by health practitioner up to 16 weeks).

New South Wales

In New South Wales, the Crimes Legislation Amendment (Loss of Foetus) Act 2021 was assented to by the Governor General on Mon 29 Nov 2021 – Act No 36 of 2021 (GG No. 622, 03/12/2021, n2021-2652. This Act will amend the Crimes Act 1900 (NSW) (introducing s54A and s54B) to create an offence if a) the person’s act or omission constitutes an offence under a grievous bodily harm provision and causes the loss of a foetus of a pregnant woman; or b) an act or omission causing the death of a pregnant woman constitutes an offence under a homicide provision and causes the loss of the pregnant woman’s foetus.
Note, these provisions are yet to be enacted, and are to commence on a day to be proclaimed (Crimes Legislation Amendment (Loss of Foetus) Act 2021 [NSW], s 2.)

Notes:

  1. Janine McIlwraith and Bill Madden, Health Care and The Law (2010) Thomson Reuters, Australia, p 537.