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

SThree: Associate Recruitment Consultant

£18000 - £23000 per annum + OTE: SThree: SThree are seeking Associate Recruitm...

Recruitment Genius: Senior Software Engineer - PHP

£33000 - £50000 per annum: Recruitment Genius: This is an exciting opportunity...

Opilio Recruitment: Field Marketing Manage

£25k - 40k per year + Benefits: Opilio Recruitment: A fantastic opportunity ...

Recruitment Genius: Domestic Gas Breakdown Engineers

£28000 - £35000 per annum: Recruitment Genius: Domestic Gas Breakdown Engineer...

Day In a Page

Read Next
Polish minister Rafal Trazaskowski (second from right)  

Poland is open to dialogue but EU benefits restrictions are illegal and unfair

Rafal Trzaskowski
The report will embarrass the Home Secretary, Theresa May  

Surprise, surprise: tens of thousands of illegal immigrants have 'dropped off' the Home Office’s radar

Nigel Farage
Homeless Veterans appeal: 'You look for someone who's an inspiration and try to be like them'

Homeless Veterans appeal

In 2010, Sgt Gary Jamieson stepped on an IED in Afghanistan and lost his legs and an arm. He reveals what, and who, helped him to make a remarkable recovery
Could cannabis oil reverse the effects of cancer?

Could cannabis oil reverse effects of cancer?

As a film following six patients receiving the controversial treatment is released, Kate Hilpern uncovers a very slippery issue
The Interview movie review: You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here

The Interview movie review

You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here
Serial mania has propelled podcasts into the cultural mainstream

How podcasts became mainstream

People have consumed gripping armchair investigation Serial with a relish typically reserved for box-set binges
Jesus Christ has become an unlikely pin-up for hipster marketing companies

Jesus Christ has become an unlikely pin-up

Kevin Lee Light, aka "Jesus", is the newest client of creative agency Mother while rival agency Anomaly has launched Sexy Jesus, depicting the Messiah in a series of Athena-style poses
Rosetta space mission voted most important scientific breakthrough of 2014

A memorable year for science – if not for mice

The most important scientific breakthroughs of 2014
Christmas cocktails to make you merry: From eggnog to Brown Betty and Rum Bumpo

Christmas cocktails to make you merry

Mulled wine is an essential seasonal treat. But now drinkers are rediscovering other traditional festive tipples. Angela Clutton raises a glass to Christmas cocktails
5 best activity trackers

Fitness technology: 5 best activity trackers

Up the ante in your regimen and change the habits of a lifetime with this wearable tech
Paul Scholes column: It's a little-known fact, but I have played one of the seven dwarves

Paul Scholes column

It's a little-known fact, but I have played one of the seven dwarves
Fifa's travelling circus once again steals limelight from real stars

Fifa's travelling circus once again steals limelight from real stars

Club World Cup kicked into the long grass by the continued farce surrounding Blatter, Garcia, Russia and Qatar
Frank Warren column: 2014 – boxing is back and winning new fans

Frank Warren: Boxing is back and winning new fans

2014 proves it's now one of sport's biggest hitters again
Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas