NSW Premier Gladys Berejiklian will warn MPs the decriminalisation of abortion must be “settled” before she can act on tough new penalties for the deaths of unborn babies from criminal acts including domestic violence.

Ms Berejiklan, who is travelling overseas, has told senior ministers that taking abortion out of the criminal code is a vital first step in new penalties for people who engage in criminal acts.

The New Daily understands that the Premier believes the laws can only be advanced when the abortion question is settled.

“The Premier gave a commitment in 2018 to introduce new laws this year to better recognise the loss of an unborn child as a result of a criminal act – a commitment which will be honoured,” a spokesman said last night.

Zoe’s Law: 7 News reporter @BryanSeymour1 speaks with Brodie Donegan, the mother of Zoe, who was killed in 2009 when Brodie was struck by a drug-affected driver in Ourimbah. Unborn children in Australia are not legal ‘persons’ – only those born alive are recognised in law. #7News pic.twitter.com/WgpoRzd519

— 7NEWS Sydney (@7NewsSydney) October 14, 2018

The change of legislation has been supported by a family who lost their daughter at 32 weeks gestation, after the pregnant mother was struck by a car.

But the family have repeatedly pleaded with conservatives not to appropriate their daughter’s name and call an abortion bill “Zoe’s law”.

Zoe’s mother, Brodie Donegan, told The New Daily she was pro-choice and never wanted her daughter’s tragic death to be exploited by anti-abortion campaigners.

“I think they definitely need to decriminalise abortion before they attempt a bill,” Ms Donegan said.

“We are pro-choice. And do not support anything that is not.”

Exclusive: Meet @BrodieDonegan. She wants new laws to tackle criminal acts that lead to the deaths of unborn babies and her story is one of reasons why @GladysB wants to decriminalise abortion. Story here: https://t.co/CjVia6MCLq pic.twitter.com/b74xYHEJex

— Samantha Maiden (@samanthamaiden) August 12, 2019

Ms Donegan revealed she had been hounded by anti-abortion groups and the debate often reopened the trauma of her daughter’s death.

“About a year after my accident, [NSW Upper House MP] Fred Nile put up a law which we knew nothing about. Right-to-life people had bombarded us with material following my accident and we ignored them,” she said.

“We were contacted and sent material by the Right to Life and Christian Democrats initially, which we ignored.

“When we tried to do our own version of Zoe’s law, we were trolled by pro-choice groups who thought we were anti-abortion.”

Ms Donegan now hopes the passage of abortion laws in NSW could clear the way for change.

A bill to decriminalise abortion in the state passed the lower house on Thursday.

It will be scrutinised by a committee before being debated and voted on in the upper house.

“We would be happy to work with the [NSW] government on a bill. Not keen on working with Fred. His views do not support ours and he has never asked for permission to use our daughter’s name and he continues to, despite knowing we don’t like it,” she said.

The issue was reignited after a fatal car crash in the Sydney suburb of Orchard Hills last year, which killed heavily pregnant newlywed Katherine Hoang and her unborn twins.

“I did speak to the Attorney-General’s office a couple of times last year. I don’t like to bother people. They usually only get in touch when there’s been another accident,” she said.

Nationals MLC Trevor Khan had drafted amendments to Reverend Nile’s bill but faced opposition from pro-choice groups, which feared the bill was a stalking horse to criminalising abortion, and pro-life groups that believed his amendments were a precursor to decriminalisation.

His proposals had included an exclusion for abortion, a definition of a foetus as being a minimum of 24 weeks, and changing the name of the bill so that it is no longer called Zoe’s law.

Mr Khan said he now hoped decriminalising abortion could finally allow the NSW Parliament to act on the Donegan family’s hopes for change.

“My view is, yes, it creates the opportunities to proceed,” he said.

“It was quite difficult to act without dealing with this issue first.”