Could drinking alcohol while pregnant be classified as a crime?

At the moment, our laws do not explicitly recognise the rights of an unborn child until after birth

Share

A controversial legal challenge has been made against a mother who drank alcohol while pregnant, which, if successful, could dramatically affect the rights of every pregnant women in the UK.

The woman kept drinking despite advice from her doctors that excessive amounts of alcohol in pregnancy could seriously damage her unborn child. Her daughter was born with foetal alcohol spectrum disorder, which can cause physical, psychological and behavioural problems.

The child was fostered and is now under the guardianship of a council in the north-west, who have accused the mother of criminal injury. They are trying to secure compensation on her behalf by taking the case to the Court of Appeal.

A tribunal in 2011 already ruled that the child sustained injury because of her mother’s actions, but Judge Howard Levenson of the Administrative Appeals Chamber overturned this ruling in 2013, concluding that no criminal conviction could be made.

Although there had been “administration of a poison or other destructive or noxious thing, so as thereby to inflict grievous bodily harm,” because this took place during pregnancy the unborn baby “was not a person,” and so no criminal offence could be committed.

The council is mounting their challenge against Judge Levenson’s decision. If they succeed, knowingly harming a child by drinking alcohol while pregnant could be classified as a crime.

Some headlines need a second look. The idea of “personhood” is a key principal of modern medical ethics. It is a complex and broad concept, that includes the rights and responsibilities of being an independent, decision-making individual. It applies to patients consenting to surgical procedures, people refusing medical treatment, and to pregnant women.

In the UK personhood does not currently apply to an unborn foetus. Although a foetus may have a special potential to become a human being, our laws do not explicitly recognise the rights of an unborn child until after birth.

Contrast this with the Republic of Ireland, where their constitution “acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

The UK does not have a codified constitution. Ours is a mishmash of statute law and court cases where legal precedents are set. Therefore if the council win, and the use of a “poison or other destructive or noxious thing” on a foetus is ruled to constitute criminal harm, the role of such substances could be called into question in any other court.

The law would change without any statute being passed.

This case could also create a need to establish when a foetus is developed enough to be able to be criminally harmed. It might be at 24 weeks, when a foetus is regarded viable outside the womb. If judged to be earlier, say at conception, a knowingly pregnant woman would immediately have fewer legal rights than her non-pregnant counterpart.

The huge social and legal implications of the council’s case means it is probably unlikely to succeed in the Court of Appeal. The controversies raised have the potential to erode a pregnant woman’s right to autonomy over her own body.

To be clear: no doctor would ever condone drinking alcohol in pregnancy. There is no known established safe level of alcohol consumption when pregnant, and the related birth defects can lead to changes in brain development, cause heart problems, and restrict a child’s growth. I would always advise against drinking in pregnancy. But there is a difference between giving good advice, and making an irresponsible decision an illegal one.

React Now

  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Ashdown Group: Practice Accountant - Bournemouth - £38,000

£32000 - £38000 per annum: Ashdown Group: A successful accountancy practice in...

SThree: Trainee Recruitment Consultant

£18000 - £23000 per annum + Uncapped commission: SThree: Does earning a 6 figu...

Recruitment Genius: SEO Executive

£18000 - £25000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: New Lift Sales Executive - Lift and Elevators

£35000 - £40000 per annum: Recruitment Genius: A challenging opportunity for a...

Day In a Page

Read Next
 

For all his faults, Russell Brand is utterly sincere, something politicians should emulate

Janet Street-Porter
 

Never underestimate the power of the National Trust

Boyd Tonkin
The saffron censorship that governs India: Why national pride and religious sentiment trump freedom of expression

The saffron censorship that governs India

Zareer Masani reveals why national pride and religious sentiment trump freedom of expression
Prince Charles' 'black spider' letters to be published 'within weeks'

Prince Charles' 'black spider' letters to be published 'within weeks'

Supreme Court rules Dominic Grieve's ministerial veto was invalid
Distressed Zayn Malik fans are cutting themselves - how did fandom get so dark?

How did fandom get so dark?

Grief over Zayn Malik's exit from One Direction seemed amusing until stories of mass 'cutting' emerged. Experts tell Gillian Orr the distress is real, and the girls need support
The galaxy collisions that shed light on unseen parallel Universe

The cosmic collisions that have shed light on unseen parallel Universe

Dark matter study gives scientists insight into mystery of space
The Swedes are adding a gender-neutral pronoun to their dictionary

Swedes introduce gender-neutral pronoun

Why, asks Simon Usborne, must English still struggle awkwardly with the likes of 's/he' and 'they'?
Disney's mega money-making formula: 'Human' remakes of cartoon classics are part of a lucrative, long-term creative plan

Disney's mega money-making formula

'Human' remakes of cartoon classics are part of a lucrative, long-term creative plan
Lobster has gone mainstream with supermarket bargains for £10 or less - but is it any good?

Lobster has gone mainstream

Anthea Gerrie, raised on meaty specimens from the waters around Maine, reveals how to cook up an affordable feast
Easter 2015: 14 best decorations

14 best Easter decorations

Get into the Easter spirit with our pick of accessories, ornaments and tableware
Paul Scholes column: Gareth Bale would be a perfect fit at Manchester United and could turn them into serious title contenders next season

Paul Scholes column

Gareth Bale would be a perfect fit at Manchester United and could turn them into serious title contenders next season
Inside the Kansas greenhouses where Monsanto is 'playing God' with the future of the planet

The future of GM

The greenhouses where Monsanto 'plays God' with the future of the planet
Britain's mild winters could be numbered: why global warming is leaving UK chillier

Britain's mild winters could be numbered

Gulf Stream is slowing down faster than ever, scientists say
Government gives £250,000 to Independent appeal

Government gives £250,000 to Independent appeal

Donation brings total raised by Homeless Veterans campaign to at least £1.25m
Oh dear, the most borrowed book at Bank of England library doesn't inspire confidence

The most borrowed book at Bank of England library? Oh dear

The book's fifth edition is used for Edexcel exams
Cowslips vs honeysuckle: The hunt for the UK’s favourite wildflower

Cowslips vs honeysuckle

It's the hunt for UK’s favourite wildflower
Child abuse scandal: Did a botched blackmail attempt by South African intelligence help Cyril Smith escape justice?

Did a botched blackmail attempt help Cyril Smith escape justice?

A fresh twist reveals the Liberal MP was targeted by the notorious South African intelligence agency Boss