#Law Reform
Lawmakers and Courts

The Coroner cannot investigate any deaths of babies in utero - stillborn babies. No matter the circumstances or gestational age, a baby in one moment is not eligible for a Coronial Inquest and, a moment later (once a breath is taken), he or she is. Impact to parents, families and society is the same for a baby that is capable of independent life no matter whether a breath is taken. The Coroner's influence and powers is needed just the same: to investigate; to hold accountable; to bring awareness; to change. It is the institution that shines light on deaths of an unusual or concerning nature and recommends changes so these events don’t happen in the future.

Importantly, the number of stillbirth deaths has not changed, despite improvement in medical practice and technology, since the 1980s. And 30-35% of babies born still are said to have died of ‘causes unknown’. The Coroner’s Court can potentially help understand these deaths and ultimately motivate change.

So we seek a change to the Coroner’s Act so that these babies’ deaths can be under the jurisdiction of the Coroner’s Court.

To the Honourable the Members of the House of Assembly in Parliament Assembled

Title: Coronial Jurisdiction for stillborn children at, and past, 28 weeks gestational age

(i) the Births, Deaths and Marriages Registration Act 1996 in South Australia requires a report of a still birth to the registrar of Births, Deaths, and Marriages, where a still birth is taken as the death of a foetus of at least 20 weeks gestation,
(ii) the Criminal Consolidation Act 1935 states that termination of a pregnancy of more than 28 weeks prima facie results in the death of a child capable of independent life, which is not exempt from criminal prosecution under the Act,
(iii) the above legislation thus treat the death of a foetus beyond 28 weeks as similar to the death of a child,
(iv) The expertise and authority of the coronial findings will help to reduce the rate of still births, which has remained constant for many years, despite general medical progress,

We the undersigned petitioners humbly request the Government of South Australia amend the Coroner’s Act 2003 so that Coronial jurisdiction (section 12(1)(a) covers stillborn children of more than 28 weeks gestation.

We argue that given the rate of stillbirth deaths has not changed since the 1980s, and the current rate of finding cause of death as ‘unknown’ for stillbirths continues to be at an unacceptable 30-35%, that there is a real need for the expertise and processes of Coronial Inquests to be applied to these deaths.
Further we argue that the current demarcation between a person, for the purposes of the Coroner’s Act, and an unborn foetus very close to full term gestation, or even one in the process of being born, is an artificial and unsatisfactory one. As the following observations in the United States in People v Chavez 176 P2d 92, 94 (1947) suggests:
“There is not much change in the child itself between a moment before and a moment after it expulsion from the body of its mother, and normally, while still dependent on its mother, the child, for some time before its born, has not only the possibility but a strong probability of an ability to live an independent life. It is well known that a baby may live and grow when removed from the body of its dead mother by a Caesarian (sic) operation. There mere removal of the baby in such a case or its birth in a normal case does not, of itself and alone, create a human being. While before birth or removal it is in a sense dependent upon its mother for life, there is another sense in which it has started an independent existence after it has reached a state of development where it is capable of living and where it will, in the normal course of nature and with ordinary care, continue to live and grow as a separate being …”

Despite wide acknowledgement of the power of this argument though there is a suggestion that other lines of demarcation carry their own difficulties, as does the current definition of still born-child in Part 4 of the Coroner’s Act and The Births, Deaths and Marriages Act 1996. The following arguments were made by the Coroner of South Australia during the inquest into Matthew Anthony McPhail 2002:
“If, as Mr Stanley has urged me to find, the law is that the death of a person includes that of a still born child, as defined in Part 4 of the Act, the coroner would have jurisdiction over miscarriages that occur at 20 weeks gestation, but not at 19 weeks gestation. The figure of 20 weeks gestation is incongruous when it is remembered that for the purposes of the abortion law in the Criminal Law Consolidation Act 1935, prima facie proof that a child was capable of being born alive is afforded by proof of 28 weeks gestation. Drawing the line of demarcation at 20 weeks would seem to me also to be an artifice and one that the legislature did not intend. It is equally arguable that the coroner’s jurisdiction is more happily delineated at the point in time when the child is fully extruded from the body of its mother, in accordance with the common law, rather than at some arbitrary point in the course of gestation. Moreover, it would seem to me that any other test would be so fraught with imprecision as to be unworkable.”

For the purposes then of honoring this argument, maintaining congruity with the abortion law and the Criminal Law Consolidation Act 19, and the intention of Coronial Jurisdiction to include the death of a human being who is at least capable of independent life, a distinction should be drawn between the death of an unborn foetus, or stillborn-child, as defined for the purposes of Coronial jurisdiction and a stillborn-child as defined in Part 4 of the Coroner’s Act and The Births, Deaths and Marriages Act 1996.

We do not agree that any other test of ‘personhood’, beside the point of extrusion from a mother’s body, is unworkable. We note for instance that for the purposes of abortion law it is stated, in the Criminal Consolidation Act 1935, and has been workable for many years, that an unborn foetus is capable of independent life at 28 weeks gestation. This point then is both precise and demonstrably workable. We note also that cases such as the Coronial Inquest into Matthew Anthony McPhail 2002 show that the current line of demarcation is not without its own imprecision.
Neither do we agree that a point during gestation is more arbitrary then the point of extrusion from the mother’s body since the point at 28 weeks is the point at which, under the law, the child is prima facae capable of independent life. And, one could argue, that being capable of independent life is a reasonable measure of personhood and therefore more in line with the intention of the law, in regards to the concept of personhood.

Furthermore, the law cannot avoid the drawing of arbitrary lines. The question is whether it is the public interest to continue to treat still births as of less concern to the community in terms of determining their causes and finding remedies for any human fault involved. We believe that this is not in the public interest. The setback to the interest of parents in cases of still birth in advanced pregnancies is just as great, while the willingness of the community to support efforts to ensure successful pregnancies shows that such setbacks should be of sufficient community concern to warrant Coronial investigation.
A line of demarcation at the point of 28 weeks (and thus at the point at which a child is prima facie capable of independent life) is then no more arbitrary than the point at which a child is extruded from the body and is both precise and workable. It is, furthermore, more in line with both the intention of the law, the standards of the law, as set out in the Criminal Consolidation Act 1935, and the standards, and needs, of society.
We therefore seek a change to the Coroner’s Act, so that stillborn babies’ deaths can come under the jurisdiction of the Coroner’s Court. We propose that the line be drawn at the later of the lines already drawn in other legislation. This would make 28 weeks of gestation the point at which still births come within Coronial jurisdiction. In making this proposal we want only to provide a feasible definite criterion to be considered for legislation that would bring appropriate cases of still birth within Coronial jurisdiction. Other criteria might be proposed. We would welcome any that the government decided was best, provided it addressed the reasons we have given for the change.
We appreciate some issues will arise as a result of such a change. We do not view this though as a reason to deny Coronial Jurisdiction. In fact we argue the Coroner’s Court is just such the forum to approach such issues.

Note that we do not seek to change the definition of ‘person’ or a ‘human being’ under Common Law, for the purposes of Criminal law, to include unborn foetus’, though we believe this issue is worthy of discussion.

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The Coronial Juridiction for still-born babies petition to Lawmakers and Courts was written by MMaywald and is in the category Law Reform at GoPetition.