Charlie - posted on 05/24/2010 ( 96 moms have responded )
THE parents of an unborn baby girl, killed when her heavily pregnant mother was run down on Christmas Day by a driver allegedly on drugs, are demanding a charge of murder or manslaughter over their child's death.
But according to New South Wales law, Zoe Ball was not a human being because, despite spending eight months in her mother's womb, the baby did not take a breath.
Parents Brodie Donegan and Nick Ball have decided to tell their story about the loss of their child with one aim: To change the law.
Ms Donegan was 32-weeks pregnant with the second child they had longed for when she went for a short walk to "stretch her restless legs". Just 20m from her driveway an allegedly drug-affected driver swerved off the road and hit her.
The impact shattered Ms Donegan's pelvis, lower spine, hip and right foot. She went head-first through the windscreen of the woman's minivan. The 40-year-old driver escaped uninjured.
The charges - driving under the influence of drugs and causing grievous bodily harm - are yet to be heard in court.
The couple want the driver charged with their daughter's murder or manslaughter. But the officer in charge of their case said the driver could not be charged.
The police report provided to Ms Donegan and the driver's insurance company did not even mention that she lost the child.
"As Zoe did not technically take a breath and was stillborn they say they can't charge her with manslaughter," Ms Donegan said.
Now the couple, from Ourimbah on the NSW Central Coast, are campaigning for the death of an unborn child to be a crime attracting a charge of murder or manslaughter.
"Not charging for Zoe's death negates her life," Ms Donegan said.
"There has to be a specific law that recognises the viability of life and protects an unborn child and the wording of that law has to include manslaughter. And it should apply on a national level."
They said police told them there was no intent to harm mother or child, even though a police spokeswoman said the driver had been charged under Byron's Law.
But Ms Donegan argued: "I believe if you get into a car under the influence or even knowingly fatigued that is intent.
"I begged them to do the caesarean as soon as I arrived at hospital. They said it was more important they assess my injuries."
A spokesman for Police Minister Michael Daley said the minister was willing to sit down with the Attorney-General's office to see if Byron's Law needed "adjusting".
A spokesman for Attorney-General John Hatzistergos said his office had been in touch with Ms Donegan and felt for her.
"The Attorney-General's office spoke with the victim last week and is seeking to obtain the full details of this case," the spokesman said.
Meanwhile, Senior Sergeant Peter Jenkins, commander of the Metropolitan Crash Investigation Unit, defended the charges.
He said police did not have power to lay charges over and above grievous bodily harm to a pregnant mother if the baby did not take a breath.
At this late stage of pregnancy , i most certainly feel he should be charged with her death as a person , although not an individual from her mothers body she is fully formed and functioning and should be treated as a person .
Do you think he should be charged with the death of Zoe ? do you consider her "human"?