A test case is currently on-going in the UK whereby lawyers acting on behalf of a seven year old disabled girl who has Foetal Alcohol Syndrome are pursuing the Criminal Injuries Compensation Authority (CICA) for compensation, arguing that the mother (who drank heavily during the pregnancy) committed the crime of poisoning. The lawyers have even argued this should be held to be equivalent to attempted manslaughter.
Obviously this has sparked a big debate. One of the issues raised is that for the crime of poisoning to be committed there must be a victim and it is still unclear where the statutes of the CICA consider a foetus to have the same legal rights as a person.
The second issue is whether trying to control drinking in this manner by making it a criminal offence is a violation of the pregnant woman's rights and whether this will lead to a slippery slope (pregnant women are also advised not to eat soft-boiled eggs, certain cheeses and all other manner of things that may harm the unborn baby - would these also become illegal?).
I'd be interested in people's view on these two issues:
1) Is it poisoning? - As a result of the heavy drinking the foetus' blood alcohol levels rise to a level that the liver is unable to cope with. But can this travesty be treated legally in the same manner as a traditional poisoning given the foetus is not a fully-developed person. Is there a point at which we should legally consider it the same?
2) Should heavy drinking in pregnancy be considered a criminal offence?
Is it poisoning?
Late 3rd trimester I would have a hard time saying no since the fetus is certainly viable.
Should it be criminal?
Tough question. If a woman has every intention of carrying a fetus to term she should accept the responsibility of doing that which is necessary to insure the normal development of her unborn. If she's a drug addict/alcoholic then termination is probably wise as "moments of weakness" can do irreparable harm to the child. Ask any nurse just how stressful it is to observe a crack baby in the throes of withdrawal. Our sensibilities should demand responsibility when it comes to procreation and child bearing.
What about a child whose disability can be traced back to her mother's taste in bed partners?
Few women drink alcohol while pregnant intending to hurt their fetus (and remember that if one wants to preserve the right of a woman to abort, you cannot talk about the fetus as though it has human rights, such as the right not to be abused or damaged). In much the same way, a woman might take on abusive partners hoping against hope that he won't damage herself, much less her fetus.
I'm not sure I know what you mean.
I was referring to a woman who tends toward physically abusive men. The man physically abuses the woman with effects on the fetus and then the child. Is bad taste in men a potential criminal offense?
Using your drinking example, we could have children suing mom for damages for her bad taste in men.
What do you mean by "direct result"? It certainly can't mean anything in a deterministic way because most women who imbibe during pregnancy do not produce FAS babies.
By now, I think, most women have heard about abusive relationships and the signs. They just choose to think they will be the exception and that their love will tame the savage beast. So, it's a choice like choosing to drink alcohol.
There is research to suggest that stress during pregnancy also causes problems for the unborn baby so I think you're right... let's try and help instead.
While, of course, males can't get pregnant, incarceration can certainly sometimes lead to involuntary separation from their children. How much empathy should we feel for them and what should we be doing about it?
Some thoughts on the criminalization of pregnant drinking...
- Incarcerating the mother would in no way help the child. Unless it is deemed necessary to remove the child from the home, which is already a law, then there can be further action taken against the mom. Still pretty harsh, though
- Fining the mother would in no way help the child. Unless it were to set up a mandatory trust fund or something to take care of the kids' medical bills or something. Not a very governmental action to take.
- The mother can't un-drink-to-excess, so no post facto action against her can have any positive outcome.
Maybe if the baby comes out with defects, the state can impose some duties on the parents, but they pretty much already have those duties by just being parents in society. The only way I can see to levy any consequence that might be helpful is fining liquor purveyors for serving pregnant women.
Better to provide counseling, rather than punishment. A phrase that can be applied a lot in the US.
Some people see this as more anti-woman legislating, akin to limiting abortion rights etc.
You're right that no retrospective punishment will help the child, so the only purpose would be to act as a deterrent I suppose. I'm not convinced it would work.