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

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

Ashdown Group: Assistant Management Accountant - Part Qualified CIMA / ACCA

£30000 per annum + benefits: Ashdown Group: We are recruitment for an Assistan...

Recruitment Genius: Field Sales Executive - OTE £50,000

£45000 - £50000 per annum: Recruitment Genius: This leading provider of design...

Recruitment Genius: Logistics Analyst

£23000 - £28000 per annum: Recruitment Genius: Would you like to be a part of ...

Recruitment Genius: Technical Manager - R&D - Paint

£35000 - £45000 per annum: Recruitment Genius: This growing successful busines...

Day In a Page

Read Next
 

Letter from the Political Editor: With 100 days still to go how will Cameron, Miliband and Co. keep us all engaged?

Andrew Grice
A solar energy farm in France  

Nature Studies: For all the attractions of solar power, it shouldn’t blight the countryside

Michael McCarthy
Woman who was sent to three Nazi death camps describes how she escaped the gas chamber

Auschwitz liberation 70th anniversary

Woman sent to three Nazi death camps describes surviving gas chamber
DSK, Dodo the Pimp, and the Carlton Hotel

The inside track on France's trial of the year

Dominique Strauss-Kahn, Dodo the Pimp, and the Carlton Hotel:
As provocative now as they ever were

Sarah Kane season

Why her plays are as provocative now as when they were written
Murder of Japanese hostage has grim echoes of a killing in Iraq 11 years ago

Murder of Japanese hostage has grim echoes of another killing

Japanese mood was against what was seen as irresponsible trips to a vicious war zone
Syria crisis: Celebrities call on David Cameron to take more refugees as one young mother tells of torture by Assad regime

Celebrities call on David Cameron to take more Syrian refugees

One young mother tells of torture by Assad regime
The enemy within: People who hear voices in their heads are being encouraged to talk back – with promising results

The enemy within

People who hear voices in their heads are being encouraged to talk back
'In Auschwitz you got used to anything'

'In Auschwitz you got used to anything'

Survivors of the Nazi concentration camp remember its horror, 70 years on
Autumn/winter menswear 2015: The uniforms that make up modern life come to the fore

Autumn/winter menswear 2015

The uniforms that make up modern life come to the fore
'I'm gay, and plan to fight military homophobia'

'I'm gay, and plan to fight military homophobia'

Army general planning to come out
Iraq invasion 2003: The bloody warnings six wise men gave to Tony Blair as he prepared to launch poorly planned campaign

What the six wise men told Tony Blair

Months before the invasion of Iraq in 2003, experts sought to warn the PM about his plans. Here, four of them recall that day
25 years of The Independent on Sunday: The stories, the writers and the changes over the last quarter of a century

25 years of The Independent on Sunday

The stories, the writers and the changes over the last quarter of a century
Homeless Veterans appeal: 'Really caring is a dangerous emotion in this kind of work'

Homeless Veterans appeal

As head of The Soldiers' Charity, Martin Rutledge has to temper compassion with realism. He tells Chris Green how his Army career prepared him
Wu-Tang Clan and The Sexual Objects offer fans a chance to own the only copies of their latest albums

Smash hit go under the hammer

It's nice to pick up a new record once in a while, but the purchasers of two latest releases can go a step further - by buying the only copy
Geeks who rocked the world: Documentary looks back at origins of the computer-games industry

The geeks who rocked the world

A new documentary looks back at origins of the computer-games industry
Belle & Sebastian interview: Stuart Murdoch reveals how the band is taking a new direction

Belle & Sebastian is taking a new direction

Twenty years ago, Belle & Sebastian was a fey indie band from Glasgow. It still is – except today, as prime mover Stuart Murdoch admits, it has a global cult following, from Hollywood to South Korea