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28 July 2014

UK: Charities intervene in court case to defend pregnant women’s freedom

An unprecedented hearing to decide whether a child whose mother drank alcohol during pregnancy should receive compensation could criminalise pregnant women's behaviour, claim BPAS and Birthrights.

The British Pregnancy Advisory Service and legal charity Birthrights have applied to address the court on the case, the Observer reports. The charities believe the ruling could undermine women’s freedom to make decisions for themselves while pregnant.

A local authority in the north-west of England, which cannot be named for legal reasons, is seeking to demonstrate that the mother of a six-year-old girl born with foetal alcohol syndrome committed a crime under the Offences Against the Persons Act 1861 by drinking during her pregnancy. In a legal submission seen by the Observer, the two organisations claim that if the court agrees with the council, “it would set a precedent that could be used in criminal prosecutions of mothers whose babies are born with foetal alcohol spectrum disorder”.

The document adds: “Such a decision would treat pregnant women differently from other legally competent persons, and threaten their right to make autonomous decisions about their lives and bodies. As well as undermining women’s choices, it might also deter women who need support from seeking help during pregnancy and put health professionals under pressure to report women suspected of drinking to the police.”

An earlier tribunal hearing of the same test case ruled that the child was the victim of a crime. Judge Howard Levenson found that there had been “administration of a poison or other destructive or noxious thing, so as thereby to inflict grievous bodily harm”. However, the Criminal Injuries Compensation Authority appealed against this decision and was backed by the upper tribunal of the administrative appeals chamber. It ruled that a crime could not have been committed because the girl was unborn at the time and therefore “not a person”. The court of appeal will hear the case later this year.

The child’s mother, who drank “grossly excessive quantities of alcohol” during her pregnancy, was never convicted of any offence. Foetal alcohol syndrome is a complex condition which includes retarded growth, facial abnormalities and intellectual impairment. Children who display certain psychological aspects of the syndrome – including learning difficulties and an inability to connect emotionally with their peers – but do not have the physical manifestations, are said to suffer from foetal alcohol spectrum disorder.

Most babies of women who abuse alcohol are not affected: other factors, including nutritional status, genetic makeup of mother and foetus, age and general health, are believed to play a role. The number of cases of foetal alcohol syndrome has tripled since records were first kept 16 years ago. There were 252 diagnoses of the syndrome in England in 2012-13. Experts say that the figures suggest an improved ability to diagnose the condition but also a failure to deal with alcohol abuse.

In a joint statement, Ann Furedi, chief executive of the British Pregnancy Advisory Service, which gives advice to women with unplanned pregnancies, and Rebecca Schiller, co-chair of Birthrights, which offers legal help, said criminalising pregnant women was not the solution. “Viewing these cases as potentially criminal offences will do nothing for the health of women or their babies … We should take very seriously any legal developments which call into question the autonomy of pregnant women and right to make their own decisions.”

The Department of Health advises that alcohol is to be avoided in pregnancy, while the independent National Institute for Health and Care Excellence advises women to avoid alcohol in the first three months of pregnancy because of the risk of a miscarriage.

In a commentary, Rebecca Schiller writes in the Guardian:

‘Despite increasingly prescriptive official guidance about avoiding alcohol when pregnant, the evidence base on this subject is patchy at best. As Dr Ellie Lee, director of the Centre for Parenting Culture Studies, explains: “It is remarkable that these approaches have gained such a hold. What has come to count is not evidence about the effects of drinking, but rather the absence of it. Since it is not known whether drinking certain amounts of alcohol in pregnancy is harmful, it is seen as better to act as though it might be. What is known is that there is an association between drinking a great deal and a specific set of birth defects, but since not all babies born to alcoholic women have these defects there is more to it than alcohol as a substance – for example, nutrition and general health.”

‘Whether or not you accept the shaky science, it is hard to see how punitive measures help women or babies, particularly those in the most vulnerable groups who inevitably become the target for sanctions. Clare Murphy, director of external affairs at Bpas, points out that becoming pregnant doesn’t suddenly change the context of a woman’s life, and the challenges or addictions she might long have struggled with. Threatening these women with criminal sanctions is not the marker of a civilised society, she adds.’

Schiller continues:

‘We can look to the US for an example of what happens when pregnancy is positioned as a sub-human state in which a woman must accept that her basic rights are sacrificed for, or set in competition with, her foetus. There is no evidence from the US that the rising trend for punitive approaches to public health have had any positive effect, says Elizabeth Armstrong professor of sociology and public affairs at Princeton University.

‘A 2013 study by Lynn Paltrow, founder of National Advocates for Pregnant Women, charts the consequences of the US legal system’s separation of foetal and maternal rights. She details hundreds of legal proceedings in which a woman’s pregnancy was the central factor in restricting her freedom. From a forced caesarean that led to the death of a cancer-patient mother, to a prison sentence for homicide handed out to a woman who attempted suicide while pregnant, Paltrow’s work charts a rightwing tightening of the harness around women’s uteruses that extends as far as giving the unfertilised eggs in their bodies separate legal status. This is a world in which, according to Paltrow, “what is being criminalised is not just the ‘action’ or ‘behaviour’ it is the pregnancy as well. In other words – but for being pregnant – there would be no criminal or civil liability.”

Much of the push to recategorise pregnant women’s humanity stems, of course, from the aggressive US anti-abortion agenda. It is a neat and persuasive way for the anti-abortion movement to legitimise a rhetoric that uses the presumption of foetal rights to push women down the hierarchy and into line. As Paltrow explains: “So-called pro-life measures are being used in ways that not only violate women’s reproductive rights, but create the basis for depriving them of their constitutional personhood and human rights.”’

Alcohol abuse in pregnancy could become a crime, legal papers claim. Observer, 26 July 2014

Criminalising pregnant women who drink is a ploy to restrict their freedom. If the UK apes the US and punishes pregnant women, we will be heading towards a dystopia akin to that in The Handmaid’s Tale. Rebecca Schiller, Guardian, 29 July 2014

Women’s charities warn of serious consequences from pregnancy drinking case. BPAS, 28 July 2014

Also read:

Analysis: Drinking in pregnancy – what do we know? Health professionals and policymakers are drawing increasing attention to women’s alcohol consumption during pregnancy: to the point where women who are pregnant, or thinking of becoming pregnant, are officially advised to abstain from alcohol altogether. But how much do we know about the effects of alcohol upon the developing fetus? And does this justify the current guidance? Reproductive Review, 5 February 2014

UK: Girl awarded compensation after mother drank heavily in pregnancy. A 16-year-old girl has been awarded £500,000 in criminal injuries compensation for severe brain damage she ‘sustained in the womb as a result of her mother drinking alcohol,’ the Sunday Times reports. Reproductive Review, 20 May 2014

Australia: Challenge to official guidelines on light drinking in pregnancy. A leading pharmacist has warned that some women will consider terminations due to unwarranted fears about the health of their fetuses. Reproductive Review, 22 April 2014.