Baby Lost Read online

  10

  The ‘born alive’ rule

  Home didn’t quite feel like home those first few weeks—here were our familiar things but oriented differently in a new, unfamiliar space. Our bed in Sydney had faced the door, but here friends had assembled our bed next to the door. My entire life had been turned 90 degrees; everything was off-kilter. I had to remember the way to the bathroom. I noted down each medication I took. It felt remiss suddenly to live unmonitored after all the heart rate monitors and oxygen saturation clips that we’d relied on for proof that I was alive.

  Saturday, 23 January 2010

  It’s 4 a.m. and I’m awake again—thinking of her being cut from my body. Four weeks ago today was Boxing Day. A day to sleep in—or in my case, wake up, eat enormous pregnant woman breakfast, then go back to bed.

  At that point, we hadn’t even decided whether or not to go to that stupid picnic on the 27th—our fate was still open. I know I’m torturing myself, but I still wish we’d decided not to go. All I wanted from that day was to hang out with my mum for a bit, do as little as possible and enjoy being pregnant after all the crazy moving interstate and Christmas business. Why did I feel the need to drive around seeing people?

  Four a.m. would still find me awake most nights. I’d started reading again, frightening myself with the dystopian future Margaret Atwood created in The Year of the Flood and making things worse. Some nights I’d call friends living overseas to quell the rising tide of my own fear and panic. There I was, limping around the bathroom floor in my summer nightie at four in the morning, ranting like a madwoman to my dear friend Will while he was at work in a London law firm.

  Our days were structured around appointments: physio, psychologist, occupational therapist. In between, we unpacked and worked towards two dates: the girls’ first day at their new school, and Z’s memorial on 7 February, to mark al Arba’een—forty days since her death and the end of the initial period of intense mourning. As it turned out, it also corresponded with her due date; the week I had imagined I’d be waddling around, impatient for her to be born.

  I was avoiding the why question whenever it popped into my head. The newspapers Dad had brought me in hospital were full of pictures of the Haiti earthquake—more senseless trauma and loss. I could remember that feeling of being crushed. Among the people buried in rubble, was there a pregnant woman? For me, it had only been a matter of minutes of being crushed and trapped before I knew that fire and ambulance crews were on their way to free me. Meanwhile, earthquake victims were trapped, half-crushed, for days, and with no certainty of good medical care if they were freed. Their pain and loss, unlike mine, were compounded by poverty, and indifference from those who could afford to help.

  At home, I started creating more of the blinking portraits, using Photoshop to create animated portraits punctuated with sighs, swallows and blinks. The image would jump unnaturally, disclosing that it was a trick, a sleight-of-hand substitute for the real thing. These moving portraits were my own little robots, helping me carry out the weary waiting and time-marking of grief. I created loops of thirty-three, thirty-four, twenty-seven or twelve seconds, putting to work the numbers that still buzzed in my head—my age, Z’s gestation, and the date of the accident.

  I made a chronology of the photos, starting with the ones Mum took at the picnic before our accident, then the CT scans on the night of the accident, then the bruise photos, and then the self-portraits. In that sequence, it was as though the accident turned me inside out, and then right way out again.

  •

  I was making small excursions out into the world, but everything felt other-worldly. I wondered at people in the supermarket—‘These are the ones who survived,’ I thought. For all these people walking around, how many babies were there who didn’t make it? I was incredulous at all this rude life in front of me. The sight of sleeping babies made me panic. How did the parents calmly pushing a pram know whether their child was still breathing? Could I see the little chest rise and fall?

  Friends lent us a car, and Mum drove us around to our many appointments—GPs, hospital, counselling. I had wanted to take public transport but was told the risk of a fall (and of more internal bleeding) was too high. I was getting used to cars again, angling my broken knee across the back seat, holding onto the door handle of the taxis I took to and from rehab. But getting into the car with Rima, Jac and Jaz for the first time, to go to a movie, my slow-earned composure was suddenly gone. The sight of my legs in front of me, my feet in the same Birkenstocks I’d worn at the time of the accident, made my mouth twist into unfamiliar shapes.

  ‘Hannah.’

  My chest was heaving and it was hard to place Rima’s voice.

  ‘Hannah. You’re freaking the girls out. Stop it.’

  Rima’s voice and her hand on my leg brought me back, and somehow I caught up with my own racing breath.

  •

  I was doing my physio exercises one day when the door slowly swung open, ghostlike.

  ‘Hello?’

  No one answered, but a moment later the cat slunk in. He was cautious in this part of the house. Until very recently, he’d been confined to the laundry, so he could acclimatise slowly.

  Like the cat, I was gently sniffing out the expanding boundaries of my grief. At first, grief (and my bodily injuries) confined me to a white bed, then to a room, then a hospital corridor. Now the doors had all been opened and I was still cautious about where I set down each paw—wary of outside spaces and terrified of running into the territory of someone else’s grief. Besides, I still had so many tender spots to investigate right here: cupboards to stick my whiskers into, beds to slink under, suitcases to peer into. The boxes of baby things that had come down with all our Sydney belongings had been repacked, into the furthest reaches of the shed.

  In my dreams, cars claimed more people I loved. My best friend and her husband, crossing the road. It was sunset, and the western sun blinding. Birds swooped and confused the driver. I couldn’t stop it happening, no matter how much I screamed. I dreamt I stood on a crowded platform and as I was trying to get on the train, a woman came up and whispered in my ear, ‘Excuse me, are you forty-one weeks pregnant?’ I shook with anger and sobs, and recited my line, ‘I’m not pregnant anymore.’ I dreamt that I birthed Z naturally but she slipped out and hit the floor. No one was there to catch her. And she was as white and unmoving as when I’d last seen her. I woke up weeping. When I looked over at the clock, it was 4 a.m. again, the time she was born. She and I, both cut from the wreckage.

  In that time between coming home from rehab and the memorial, we hovered. I hummed Dusty Springfield—I didn’t know what to do with myself. Some mornings were harder than others. After a particularly bad night, I took a photo of myself with each item of clothing I took off, casting off the nightmares and capturing the now yellow-greenish bruises, before a long, weepy shower. As I dressed, I took another photo for each item I put on, layering myself against the day. I imagined flicking through the photos, a jerky stop-motion film, or a nature documentary of a snake shedding its skin.

  The newspaper was not quite a highlight of the day, but it was evidence that time was moving, that each new day was, apparently, distinct from the previous one. One Monday, we again found ourselves the subject of a newspaper article. Our case was one of two road accidents in Victoria that summer where a baby in utero had died. The other woman had lost not just her child in utero but also her partner. I thought of her every time I held Rima tight.

  Our cases had reignited debate about the criminal law’s response. Australian law followed the UK common law approach, in that criminal charges could only be laid regarding a ‘death’ if the person had been ‘born alive’. Birth, therefore, was the moment when a legal person came into existence. Harm incurred to a fetus in utero could sometimes give rise to criminal or civil liability, but only where the baby had been born alive. This meant that, for me and for the woman who lost both her partner and her baby that summer, the c
harge of dangerous driving causing death could not apply because neither of our babies had shown signs of life when they were born. I had vague memories from law school of debriefing over coffee with friends after a criminal law lecture on the ‘born alive’ rule. But the Hannah who had sat through the lecture and could discuss death and birth in the abstract now felt as remote as a minor character in a book.

  When I looked up the cases, they were grisly. In a key UK case, for example, Mr B had stabbed his partner, Ms M, with a long-bladed kitchen knife when she was around twenty-four weeks pregnant. The knife penetrated her uterus and nicked the fetus. Ms M survived the attack, had surgery to repair her wounds and was discharged from hospital, still pregnant, and with the fetal heart making its reassuring swishy beat. But seventeen days after the attack, she went into premature labour and her daughter, S, was born, ‘grossly premature’. Baby S had surgery to repair the knife wound to her abdomen and lived 121 days before dying of bronchopulmonary dysplasia. There was no evidence that the knife wound contributed to her death. Rather, she died as a result of her premature birth, which in turn was caused by the injuries inflicted on her mother when Mr B stabbed her.

  Mr B was convicted of wounding Ms M with intent to cause grievous bodily harm, and after S died, was charged with murder. The matter was appealed all the way to the House of Lords, which held that ‘a foetus was neither a distinct person separate from its mother nor merely an adjunct of the mother, but was a unique organism’.1 In these circumstances, this meant that a murder conviction could not be sustained, but that Mr B could be guilty of manslaughter on the basis that his act in stabbing Ms M was ‘both unlawful and dangerous because it was likely to cause harm to some person’ and that it had caused the death of S.2 Had S been stillborn instead, however, the ‘born alive’ rule meant that the only criminal charge would have been for causing grievous bodily harm to Ms M.

  The newspaper article pictured Nancy Asani, standing (bravely, I thought, given the circumstances) in front of a car. Nancy’s story was horribly familiar. In 1999, she was thirty-seven weeks pregnant (also with a little daughter) when someone driving without his headlights on ploughed onto the wrong side of the road and into her car, injuring her and killing her baby. A ripple of feeling went through me—anguish that anyone else should have been through what we were going through, but also a weird relief, of knowing that we were not the only ones. I was torn between wanting to find Nancy, so I could give her enormous, weepy hugs, and throwing the article in the bin, so I didn’t have to think about it.

  At the time of Nancy’s accident, there were two possible driving offences: culpable driving causing death, which carried a sentence of up to twenty years, and dangerous driving, a charge under the Road Safety Act, which carried only a maximum two-year term. Because Nancy’s baby, Meriem, was not born alive, the driver who caused the accident could only be convicted of dangerous driving in relation to the injury to Nancy, and was given a twelve-month sentence, two-year suspension of his licence and a $2500 fine.3 Since then, Nancy had been campaigning for law reform.

  And, in fact, the law had changed since she’d lost Meriem. Legislation in 2004 had created a new offence of dangerous driving causing serious injury or death, which was designed to fill the ‘gap’ between culpable and dangerous driving, and carried a maximum term of five years prison. Then, in 2008, the same legislation that took abortion out of the Crimes Act also clarified the definition of ‘serious injury’ to include ‘the destruction, other than in the course of a medical procedure, of the fetus of a pregnant woman, whether or not the woman suffers any other harm’.4

  This amendment made the Victorian legislation consistent with the law in New South Wales, where the parliament had followed the lead of the Court of Criminal Appeal in the case of R v King.5 In 2002, Phillip King had discovered that Kylie Flick, the young woman he’d had a sexual encounter with, was pregnant. He was unable to convince her to terminate the pregnancy, and had allegedly offered friends $500 to punch her in the stomach, but with no takers. In August 2002, when Flick was six months pregnant, and was moving house, King contacted her, saying he wanted to ‘say goodbye to her before she moved’.6 He came over to her place, and Flick’s evidence was that they spoke for about an hour, before ‘everything went silent, she heard a rushing noise and as she turned she felt pressure hit her stomach’.7 Flick testified that King punched her to the ground, then stomped on her stomach ‘six or seven times’.8

  In King’s evidence, he recounted that he had been angry with Flick for threatening to tell his girlfriend about the pregnancy, but the trigger for the attack was Flick’s action in lighting up a cigarette:

  Q. Did you intentionally aim for her belly?

  A. I wasn’t—at the time I wasn’t thinking, I just—everything, we were talking—everything was fine, then after—

  Q. Everything was fine was it?

  A. We were talking—we were talking about things and then—then things got brought up about she was going to tell my girlfriend and then I seen her light up a smoke and … then I just lost it and punched her in the stomach, she fell over and then I stomped on her right arm.

  …

  Q. So you cannot be any clearer about why it was that you punched her in the stomach?

  A. After that she lit up a smoke, I just—

  Q. And did the cigarette smoking enrage you did it?

  A. That and other things she was saying to me.

  Q. Because you were concerned that it was going to damage her baby?

  A. Yes.

  Q. And you went along and damaged her baby instead?

  A. Yes but I just—it just happened, it’s not like I—I just clicked and done it, I didn’t have any—yes that is.9

  I had to read that part of the judgment several times, just to make sure I hadn’t read it incorrectly. When I’d been pregnant, I’d joked with other women about the death stares you sometimes got if you were seen holding a glass of something alcoholic. But here was a direct line between the notion that pregnant women were to be policed—that their bodies were open for public judgement and advice—and a savage act of violence.

  Flick was taken immediately to Bankstown Hospital, but no fetal heartbeat could be found, and her son was stillborn several days later. King was charged with maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. A district court judge, however, ordered a permanent stay on the charges because she found that the Crown ‘could never prove that the demise of the fetus itself and/or the abruption of the placenta amounted to grievous bodily harm to the complainant Kylie Flick’ because a fetus was a ‘unique organism’ and therefore not part of the mother.10 The Criminal Court of Appeal overturned this decision, with Chief Justice Spigelman finding that:

  The close physical bond between the mother and the fetus is of such a character that, for purposes of offences such as this, the fetus should be regarded as part of the mother.11

  The 2008 Victorian Crimes Act amendments also split ‘dangerous driving causing death or serious injury’ into two distinct offences—one for death (a maximum ten-year sentence) and one for serious injury (a maximum five-year sentence). Yet, for Nancy, ‘serious injury’ couldn’t quite sum up the enormity of her loss, and she was lobbying for something more: something ‘to cover the death of unborn babies on the road’.12 She had a point—losing Zainab was qualitatively different from suffering internal bleeding—but I was hesitant about any proposed law that was directed at a baby in utero without addressing how it might affect the person in possession of the uterus. Aside from telling Nancy’s story, the article quoted various legal experts, alongside the ‘Australian Family Association’, a conservative lobby group that sought to exclude us, and any other families that didn’t feature a husband and wife, from the definition of ‘family’:

  Australian Family Association spokesman John Morrissey said the inconsistencies in the state’s laws appeared to exist because of ‘fairly permissive abortion laws’. He supported a
new law to cover the death of unborn babies in road collisions. ‘An unborn baby, we all know, is no different really from a baby who was delivered maybe two days later and equipped with a birth certificate. It’s nonsense to distinguish between the two,’ he said.13

  I was incensed. Not only did Mr Morrissey reduce the pregnant woman surrounding any ‘unborn baby’ to ‘a nonsense’, but he had the nerve to set this up as an either/or choice for women. Either we can access safe, legal abortion, or we can have the law recognise the harm caused when someone else’s violence or carelessness ends a pregnancy, but not both. I sat down and wrote my second letter to the editor that month.

  Wednesday, 27 January 2010

  One month ago (though it feels like another lifetime ago), I was 34 weeks pregnant and was driving home with my family. A four-wheel drive hit us head-on, and (among our other injuries) caused my placenta to abrupt and killed my little daughter before she was born. I was so sad to read (‘Mother vows to fight on for law change over road death of unborn child’ The Age 25 Jan 2010) that Nancy Asani suffered a similar loss in December 1999, and that another woman also lost her baby this ‘holiday’ period.

  We would support Nancy in her campaign to have the law changed to recognise that dangerous driving causing the death of an unborn baby is not just an injury to the mother. It was an injury to me, but in a much more profound way than my other injuries. Our baby, had she been delivered before the accident, would have had excellent prospects of survival—she was already 2.5kg (around 5lbs) and 48cm long. I can’t put into words what we have lost and what she has lost.

  What I find offensive is that anyone could try and twist our tragedy into some kind of argument against safe, legal abortion. John Morrissey, spokesman for the ‘Australian Family Association’, has done this in your article on Monday. How dare he try to appropriate our loss and turn it to his own political/religious ends. We were lucky not to be in a position where we had to consider abortion, but I have had a number of friends who have been in that awful position, and it is not something any woman considers lightly. Women are not stupid—we know that pregnancy is the process of turning a potential life into a living breathing child. That is what makes our loss so heartbreaking. To try and draw some connection between abortion laws and recognition of my and Nancy’s loss as a loss of life is offensive and ignorant.