A case being heard in the Court of Appeal has raised the vexed issue of whether a pregnant woman could be held criminally liable if her actions damage her unborn child. The case concerns a woman who, despite warnings from health professionals and social workers, continued to drink excessive amounts of alcohol while pregnant. Her daughter, now aged 7 and in local authority care, was born with fetal alcohol syndrome.
The local authority brought the case to see whether it could recover money on behalf of the girl from the Criminal Injuries Compensation (CIC) Authority. To succeed, it must show that a criminal act has been committed, and they are claiming that excessive alcohol use is a crime under the Offences Against the Person Act 1861. Section 23 of this Act relates to ‘maliciously administering … any poison or other destructive or noxious thing’, which then endangers life or inflicts ‘grievous bodily harm’. The senior lawyer for the authority told the court of appeal:
‘It's not disputed that the mother administered a noxious thing, it could be described as a destructive thing, to her daughter and it inflicted grievous bodily harm on her. The child was born with fetal alcohol syndrome … We say it's on all fours with manslaughter.’
(cited by Bowcott, 2014)
One of the appeal court judges noted that the equation with manslaughter was questionable since no death had resulted from the mother's actions. Indeed, it has been reported that the mother has never been convicted of any offence in relation to this. The debate, however, centres on whether an unborn baby can be the subject of such a claim. The CIC Authority appealed an earlier tribunal, which found that the child was the victim of a crime and therefore eligible for compensation. The CIC Authority will argue that to be the victim of a crime you must have ‘legal personality’, and this is not the case until a baby is born alive. The Court of Appeal will therefore have to decide whether the girl in this case was a ‘person’ in the eyes of the law when the relevant events occurred, i.e. before she was born.
The British Pregnancy Advisory Service (BPAS) and Birthrights have challenged the local authority's claim because they believe this case will set a precedent for criminalising pregnant women, a headline that proved irresistible to some journalists (‘Drinking In Pregnancy Could Be Made Illegal’ (Hassan, 2014); ‘Criminalising pregnant women who drink is a ploy to restrict their freedom’ (Schiller, 2014)). A joint statement by BPAS and Birthrights noted:
‘Viewing these cases as potential criminal offences will do nothing for the health of women and their babies. There is a strong public interest in promoting the good health of pregnant women and babies, but, as longstanding government policy recognises, this interest is best served by treating addiction and substance abuse in pregnancy as a public health, not criminal, issue.’
(cited by Bowcott, 2014)
The claim that pregnant women will be criminalised is rejected by the local authority's solicitors in this case. Noting that this claim was really about securing compensation, which would allow improved access to services and support that could help improve the quality of life of the child in question, Neil Sugarman stated:
‘This is not about the criminalisation of women. It is about whether a fetus that is damaged in the womb but goes on to be born with life-changing injuries has been the victim of a crime within the strict definitions of the statutory Criminal Injuries Compensation Scheme. It is highly unlikely to lead to prosecutions and the birth mother plays no active part in the claim process.’
(cited by Bowcott, 2014)
Those opposing this case are unlikely to be convinced by such reassurances. They point to the US where women have indeed been criminalised because of actions taken while pregnant. At least 38 states have ‘fetal homicide’ laws (variously the Fetal Protection Act, the Preborn Victims of Violence Act and the Unborn Victim of Violence Act) the original intention of which was to protect pregnant women and their unborn babies against violence from a third party—usually an abusive partner. However, Pilkington (2011) notes that the group National Advocates for Pregnant Women claim that in South Carolina—the first state to enact such legislation—only one abusive partner had been prosecuted under these laws by 2006 while around 80 women had been arrested using the same legislation.
A new Bill in Tennessee refers to:
‘Prosecution of a woman for an assaultive offense for the illegal use of a narcotic drug while pregnant, if her child is born addicted to, or harmed by, the narcotic drugs or for criminal homicide if her child dies as a result of her illegal use of a narcotic drug taken while pregnant’
This Bill refers to the taking of illegal drugs. However, the legal consumption of alcohol is also covered in parts of the US. Thomas et al (2006) note that some states have policies that create treatment facilities for pregnant women who have alcohol problems, but which also threaten the women with criminal prosecution or with having their children taken into care—at best a mixed message. Abel and Kruger's (2002: 768) now rather dated study of doctors in Michigan found that ‘52% were in favour of enacting a statute that includes drug or alcohol use during pregnancy as “child abuse” for purposes of removing that child from maternal custody’. Furthermore, a quarter of obstetricians (and 31% of family practitioners) were in favour of incarceration during pregnancy for alcohol abuse.
The English Court of Appeal case described above highlights a central and divisive issue. Is this case about fetal rights, or women's autonomy, or about securing a better life for a disabled child? How could the first two options in particular affect the relationship between a midwife and a pregnant woman? When women exercise autonomy this can challenge professional norms, and the notion of introducing fetal rights is certainly contentious. BPAS and Birthrights have claimed that this case will set a precedent for other women to face criminal prosecution if their baby is born with fetal alcohol syndrome. Alcohol abuse, per se, is not a crime; if the fact of a woman being pregnant could make it a crime then pregnant women would be treated differently from other mentally competent adults. Even apart from the dubious logic of this, such a move may have the unintended consequence of deterring women from seeking help if they know that alcohol misuse is a concern.
This case may have concluded by the time this article appears. There are reporting restrictions which mean that neither the girl nor the local authority can be named.