Drinking alcohol to excess while pregnant is “on all fours with manslaughter.” That is the view of lawyers currently involved in a criminal injuries compensation claim at the Court of Appeal, on behalf of a child with foetal alcohol spectrum disorder, an umbrella term for developmental problems caused by maternal drinking. A ruling in favour of the claimant would involve the court accepting that the girl's alcoholic mother committed a crime under the Offences Against the Person Act.
Although a test case in the UK, this is not the first accusation of its kind. From the classical period through to the present day, mothers have often found themselves in the firing line when children are stillborn or suffer from disabilities—whether it is her negative thoughts or bad posture, her diet or the condition of her womb that is thought to have caused it.
An article in an 1837 issue of The Lancet refers to cases of babies being born with injuries to the head—which could be the result of the “criminal act” of the mother compressing the child's head between her thighs during labour. Women were convicted of this crime, it notes, despite the difficulty in determining whether the act was accidental or intentional—or if it had occurred at all. And such cases continue today. In some parts of Latin America, women who have miscarriages can and often do find themselves accused of murder. In the United States, a report published last year by the campaign group National Advocates for Pregnant Women documented hundreds of cases of women being arrested or detained over concerns about their behaviour during pregnancy. Women in some US states can be imprisoned for using drugs during pregnancy, and can be charged with homicide if the baby is stillborn. Women have been convicted of abuse in these cases even when the child is born healthy. In 2010, a pregnant woman in Iowa who fell down the stairs was arrested for attempted feticide.
Outside the law courts, it is a common complaint among pregnant women that they are transformed into “public property”—that friends and strangers alike feel entitled to criticise and comment on their behaviour. Some report being admonished by strangers for eating certain foods, wearing high heels or exercising. Recall, not so long ago, the case of Lea-Ann Ellison, who found herself vilified for continuing to weightlift while pregnant, with criticisms posted online including, “That is a good way to lose your baby” and “This is sickening.” Her baby was born perfectly healthy—but no doubt she would have taken the blame had something gone wrong.
This is not to deny that the health and actions of a woman during pregnancy can affect the foetus—that, in fact, is part of the problem. Everything from diet to age can impact the health of an unborn child. Some studies even implicate stress levels and sleeping positions in the increased risk of congenital disorders or stillbirth. If we can criminalise alcoholics for knowingly putting an unborn child at risk, then why not older mothers or those with eating disorders? Other commentators have pointed out that the highest risk from drinking comes during the first 12 weeks after conception, when some women do not know that they are pregnant.
But the case is revealing not only of our problematic social attitudes towards pregnant women, but also towards alcoholism. It reflects a belief that drinking alcohol was, for this mother, a choice. In the US, too, it is mothers who have drug or alcohol problems who find themselves involved in criminal trials, rather than those with, say, anorexia, which also puts a foetus at risk. If this woman had any other illness that resulted in her child being born unwell, nobody would contemplate the accusation of attempted manslaughter.
I write none of this out of a lack of sympathy for the child, who is suffering, and who will likely suffer from the effects of her illness for the rest of her life. She deserves all the help and support she can get. The local authority that has taken the case to court on her behalf is hoping it will allow them to claim compensation from the Criminal Injuries Compensation Scheme, opening up treatment options that aren't easily available on the NHS; no one can argue with that motive. But I do wish to place the case within the context of a long tradition of attempting to impose constraints—socially and legally—on the behaviour of pregnant women: any ruling that accepted that this mother had committed a crime would be taking us into dangerous territory.
Back in 1989, Lynn M Paltrow, a lawyer and later founder of National Advocates for Pregnant Women, worried that: “At all stages of pregnancy, the foetus is completely dependent on the woman—everything she does could affect it... Recognising 'foetal abuse' moves us towards criminalising pregnancy itself because no woman can provide the perfect womb.”
Criminalising pregnant women for their perceived failings helps no one. It doesn't help the child, whose mother is less likely to seek medical attention if she fears being arrested. It doesn't help other children: those who argue that punishing women who abuse alcohol or drugs during pregnancy will deter others from doing the same—thereby preventing more children from suffering—have fundamentally misunderstood the nature of addiction. And it doesn't help the mother herself, who needs medical and psychological support, not a fine or a prison sentence.
