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Not recommended. But criminal? Lars Kristian Flem, CC BY-SA

Giving a foetus ‘personhood’ will have serious consequences for women

A story of a woman who drank a half-bottle of vodka and eight cans of strong lager daily during pregnancy and gave birth to a disabled child that ended up in foster care, was certain to stir up emotion and interest. Many will feel that “something must be done” to address behaviour that sounds unnatural, selfish and morally wrong. Based on what we know, heavy consumption of alcohol is clearly not giving the foetus the best chance. Nevertheless, how we respond to such a situation is critical.

The case which has just been heard by the Court of Appeal brings the question of how we should respond keenly into view. Judges are considering their decision after a day-long hearing on a case brought by a local council seeking criminal injuries compensation on behalf of a six-year old child, “CP”, now in foster care.

CP was diagnosed at birth with Foetal Alcohol Spectrum Disorder (FASD) allegedly caused by her mother as a result of consuming excessive quantities of alcohol during pregnancy. The council claims, as was accepted by an initial tribunal, that this consumption of alcohol meant that the child had been a “victim of violence” by virtue of the mother having maliciously administered poison so as to endanger life or inflict grievous bodily harm as defined under Section 23 of the Offences Against the Person Act 1861. The upper tribunal, however, found that the child did not constitute a victim of violence because at the relevant time, the child was “not a person” in legal terms, but a foetus. As such, no crime had actually been committed to underpin a compensation claim. It is this decision that the Council appealed.

All about compensation?

At face value, the council’s objective looks pragmatic. The aim is not to encourage the prosecution or conviction of CP’s mother. It seeks an indemnity for costs incurred in providing for disabled children in its care. If successful, the “personal injury” it is claimed CP has suffered, of FASD (as opposed to Foetal Alcohol Syndrome) could lead to many compensation claims, given that a significant proportion of children may have been removed from environments where parental neglect or abuse emerges as a result of substance abuse.

But to tap into the Criminal Injuries Compensation Scheme in the absence of an actual conviction, it needs to be determined whether a relevant crime has actually been committed. And this is why the case raises far broader issues than the health of the council’s finances. Though only involving a theoretical assessment that a crime has been committed, the ramifications for women will be very real, potentially inviting a whole host of legal measures with foetal protection at their heart.

Such fears are justified. In the United States, many states now prosecute women for committing criminal offences against their foetuses. Substance abuse by pregnant women has been a popular target with some States going to extraordinary lengths to protect foetal life. Some have passed legislation declaring the foetus to be a legal person, affording it a right to life from the moment of fertilisation. This makes applicable a wide range of offences, including that of child abuse or homicide that wouldn’t otherwise apply to the foetus. Short of recognising foetal personhood, some courts have stretched child abuse laws to include the foetus; in one case, a court prosecuted a woman under drug trafficking laws for passing drugs to her “child” during the 60-second gap between birth and cutting the umbilical cord.

UK position

Such approaches stand in stark contrast to English law where the foetus lacks legal personhood until born and holding a separate existence from its mother. The broad position is that a woman’s autonomy and right to bodily integrity trumps any interests a foetus might be said to possess. A pregnant woman can refuse medical treatment even when this may result in the death of a viable foetus. The priority afforded to women’s interests is also reflected by the Abortion Act 1967 which applies to England, Wales and Scotland; providing an abortion is performed in accordance with the 1967 Act, there is no offence.

It seems unlikely that the judiciary would risk unsettling a position so firmly embedded within English law, by suggesting that a woman could even theoretically have commissioned an act of violence against her foetus. Much is risked by so doing. Those most opposed to abortion and keen to limit women’s access to it, however, will see a successful appeal as a critical step in encouraging a legal regime which offers ever stronger foetal protection.

Nevertheless, the urge to extend the criminal law may emerge for completely different reason – those who see this as a truly exceptional and hard case demanding an exceptional response.

Criminal law and extreme cases

Hard cases, typically involving extreme situations, can generate powerful debate around our moral responsibility to prevent harm-causing behaviour – “something must be done!” The danger is that if not tempered by a full evaluation of broader concerns and a critical look at the criminal law as a vehicle for behavioural change, we can end up believing that criminalising conduct is justified.

The criminal law is a very blunt instrument. Even if we could be certain that the law would only be directed at those exceptional cases involving pregnant women engaging in heavy substance abuse (rather other kinds of risky activities), it’s unclear what benefits this could deliver, or for whom. The idea that criminal measures may be powerful in deterring women from engaging in such behaviour would seem to be founded upon some fallacy of choice and rational risk-benefit: that pregnant women who engage in such risky practices will weigh the risk of imprisonment and change their behaviour as a result.

More likely is that the threat of criminalisation will push those women who are most in need away from any help on offer for fear of criminalisation. As Emma Cave suggests: “pregnant addicts would shun health care to avoid detection. It would constitute a step backwards’.

Game of consequences

A recognition of stronger foetal interests would have far-reaching consequences for women’s rights and bodily integrity and risk constructing all women as potential threats to foetal life.

So too would this sit at odds with abortion policy given the incoherence of criminalising women who it is alleged have caused serious or even lethal harm to their foetuses through alleged substance abuse or other "risky” practices, yet accepting as lawful the intentional demise of foetal life through abortion. When sat side-by-side it would create a perverse incentive for those engaged in risky behaviour to terminate.

Critically however, as US scholars have noted, women are being punished in these cases for “risky” behaviour that would not, absent of pregnancy be subject to criminal punishment. As such, what makes substance abuse, alcohol consumption, even sex or attempted suicide the subject of the criminal law is not the behaviour itself, but the fact of pregnancy. Pregnant women – and indeed women – are being unfairly targeted.

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