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5 November 2014

UK: Why pregnant women’s drinking should not be a criminal offence

A court case being heard on criminal injuries compensation for a child whose mother drank during pregnancy could pave the way to the criminalisation of pregnant women's behaviour, warn two charities intervening in the case.

A council in the North-West of England is seeking to prove that the mother of a young girl born with Fetal Alcohol Syndrome (FAS) committed a crime under the Offences Against the Persons Act 1861 by drinking during pregnancy. The case is of profound social significance, as if the court were to interpret the law as requested by the council, it would establish a legal precedent which could be used to prosecute women who drink while pregnant.

British Pregnancy Advisory Service (BPAS) and Birthrights are intervening in the case, which they believe could seriously undermine women’s autonomy while pregnant and their freedom to make decisions for themselves. The case is being heard at the Court of Appeal on 5 November.

Similar developments in U.S. have resulted in the incarceration of women. Consequently, the American organisation National Advocates for Pregnant Women (NAPW) have called on the court to ‘reject efforts to create criminal penalties as a mechanism for addressing health problems women may face during pregnancy.’

FAS is a complex condition, denoting a collection of features including retarded growth, facial abnormalities and intellectual impairment, and there is continuing uncertainty in the medical community over the relationship between alcohol consumption and harm to the fetus. While it occurs in babies born to alcoholic women, most babies of alcoholic women will not be affected, as other factors - including nutritional status, genetic make-up of mother and fetus, age and general health - are also believed to play a role. There were 252 diagnoses of the syndrome in England in 2012-2013.

In January it emerged that lawyers representing the local authority had failed in their bid to win compensation on the child’s behalf from the Criminal Injuries Compensation Authority (CICA), PA reports. A written ruling by the Upper Tribunal of the Administrative Appeals Chamber said the child was born with Fetal Alcohol Spectrum Disorder (FASD) as a ‘direct result’ of her mother’s drinking. But it concluded: ‘If (the girl) was not a person while her mother was engaging in the relevant actions then… as a matter of law, her mother could not have committed a criminal offence.’

BPAS and Birthrights argue that pregnant women with addiction problems need rapid access to specialist support services, as do children born with disability caused by drug or alcohol abuse. We do not believe that mothers and their babies will be best served by treating pregnant women who need help as criminals. In a statement, Ann Furedi, chief executive of BPAS, and Rebecca Schiller, co-chair of Birthrights, said:

‘Viewing these cases as potential criminal offences will do nothing for the health of women and their babies. There is a strong public interest in promoting the good health of pregnant women and babies, but, as long-standing government policy recognises, this interest is best served by treating addiction and substance abuse in pregnancy as a public health, not criminal, issue.

‘As well as undermining women’s ability to make their own choices while pregnant, women with substance addictions may avoid engaging with health services or feel compelled to terminate their pregnancy rather than continue and face criminal sanctions. It could also make health professionals responsible for reporting women in their care to the police.

‘Both the immediate and broader implications of this case are troubling.  Making one particular form of behaviour during pregnancy into a criminal offence would lay the ground for criminalising a wide range of other behaviours because they may too pose a risk to the health of the baby. When we consider that the taking of necessary medication, such as treatment for epilepsy or depression, or the refusal of a caesarean section could be seen to fall into the category of maternal behaviours that may damage the fetus, the trajectory of such an approach is deeply worrying.

‘We should take very seriously any legal developments which call into question pregnant women’s fundamental right to bodily autonomy and right to make their own decisions. Pregnant women deserve support and respect, not the prospect of criminal sanction for behaviour which would not be illegal for anyone else.’

The wider impact of the case

British Pregnancy Advisory Service is a leading provider of abortion advice and care in the UK. Every year the charity sees more than 65,000 women who are considering terminating their pregnancies. Many have experienced an unintended pregnancy and are clear that they do not want to have a baby at this point in their lives. Others, however, are ambivalent about the pregnancy, and express a range of anxieties that have encouraged them to think about abortion. These include:

• Use of certain medications (eg anti-depressants or anti-epileptic drugs) that may have a teratogenic effect;
• Heavy use of legal recreational drugs such as alcohol and tobacco in the period before discovering pregnancy, and/or low to moderate use subsequently;
• Substance addiction, including alcoholism, which can make abstinence very difficult to maintain.

BPAS supports all the women we see in their pregnancy choices – whether terminating the pregnancy, continuing the pregnancy, or considering adoption. Our core philosophy is that women should be supported to make the choice that is right for them. We will never encourage women to have an abortion, even if she feels that her lifestyle or behaviour may have harmed the development of her fetus. Nor will we encourage a woman to continue her pregnancy, if she feels that she needs to have an abortion.

This means that it is important that we can provide the women whom we see with accurate information regarding her rights under the law. It is not illegal to drink alcohol during pregnancy. Conversely, it is not legal for a woman to terminate a pregnancy simply on the grounds that she has drunk alcohol – she has to meet the legal grounds laid out by Section 1 (1)(a) of the 1967 Abortion Act, where the risk to a woman’s mental health of continuing the pregnancy is greater than the risk posed by terminating it.

Therefore, when talking to pregnant women worried about the effect of their alcohol consumption on the developing fetus, BPAS will inform women that while drinking heavily during pregnancy is not advisable, it is not a crime. Furthermore, the scientific evidence about the risk of Fetal Alcohol Syndrome, particularly in relation to low to moderate levels of drinking, is far more equivocal than public health messages often imply.

Our central concern in relation to the case of CP v The Criminal Injuries Compensation Authority is that this might bring about a fundamental change in the law regarding women’s liability during pregnancy for what they eat and drink. This would have an impact for substances and behaviours beyond alcohol and drinking. It would also set up the expectation that a woman who has drunk alcohol during pregnancy should seek an abortion, or face criminal sanction.

Scientific evidence on Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Spectrum Disorder (FASD)

Fetal Alcohol Syndrome (FAS) is a complex condition. It is known to be associated with heavy alcohol consumption; however, as the British Medical Association (BMA) notes, ‘only four to five per cent of children born to women who consumed large amounts of alcohol during pregnancy are affected by the full syndrome presentation’. (1) The BMA also explains:

‘The damage caused by alcohol on the developing fetus is dependent on the level of maternal alcohol consumption, the pattern of alcohol exposure and the stage of pregnancy during which alcohol is consumed. This is confounded by a number of other risk factors including the genetic makeup of the mother and the fetus, the nutritional status of the mother, hormonal interactions, polydrug use (including tobacco use), general health of the mother, stress, maternal age and low socioeconomic status. For example, research to identify specific genetic factors contributing to FASD has found that polymorphisms of the gene for the alcohol dehydrogenase enzyme ADH1B in both the mother and the fetus, can contribute to FASD vulnerability.’

Because of the risk of FAS, heavy drinking during pregnancy is not advisable. However, the principle of bodily autonomy that lies at the heart of British medical law and ethics means that it would be wrong to criminalise a particular form of pregnancy behaviour – in this case, heavy alcohol consumption – on the grounds that it might have an adverse impact on the born baby.

Making this particular form of behaviour into a criminal offence would lay the ground for criminalising a wide range of other behaviours and maternal characteristics – such as stress, or taking necessary medication – because they, too, might pose a risk to the health of the baby.

Furthermore, we question whether it is justifiable, either on legal or moral grounds, to draw a distinction between those women who have a baby diagnosed with FAS and those who may have drunk equally heavily, but whose baby is unaffected.

These issues are of particular concern given the level of medical interest in what the BMA describes as ‘a wide range of disorders classified under the umbrella term FASD [Fetal Alcohol Spectrum Disorder].’ The BMA notes the difficulty in determining the extent of FASD in the UK, and its precise relationship with alcohol consumption:

‘Determining the incidence of FASD is complicated by a lack of reliable and consistent data collection, and the difficulty in diagnosing the range of disorders. Consequently, the incidence of FASD in the UK and internationally is not accurately known. The relationship between maternal alcohol consumption and the development of the range of disorders is not fully understood.’

If women are considered to be criminally liable for causing FAS in their baby, this opens the door to a far wider set of claims about a more amorphous set of conditions. In this respect, women who have drunk any alcohol during pregnancy and give birth to a baby with any minor condition that might be associated with FASD could find themselves the subject of criminal sanction. The effect of this in terms of the volume of compensation claims should also be considered.

Advice to women about alcohol consumption in pregnancy

Guidance from the National Institute for Health and Care Excellence (2) currently advises abstinence from alcohol during pregnancy. However, the guidance makes clear that this advice is precautionary; that is, it is based on possible associations between alcohol use and adverse outcomes for the fetus, rather than a proven relationship of causality.

Furthermore, the guidance emphasises that women can, if they wish, choose to drink alcohol during pregnancy; and it acknowledges that some women may not find it possible to abstain completely. Thus:

1.3.9.1 Pregnant women and women planning a pregnancy should be advised to avoid drinking alcohol in the first 3 months of pregnancy if possible because it may be associated with an increased risk of miscarriage.

1.3.9.2 If women choose to drink alcohol during pregnancy they should be advised to drink no more than 1 to 2 UK units once or twice a week… Although there is uncertainty regarding a safe level of alcohol consumption in pregnancy, at this low level there is no evidence of harm to the unborn baby.

1.3.9.3 Women should be informed that getting drunk or binge drinking during pregnancy (defined as more than 5 standard drinks or 7.5 UK units on a single occasion) may be harmful to the unborn baby.

As a charity providing abortion advice and care, BPAS sees most of its clients during the first 10 weeks of their pregnancies. For many of the women whom we see, the pregnancy is unintended; thus, they will not have been modifying their drinking behaviour in advance of learning that they are pregnant (often at about 6-8 weeks’ gestation).

A small but significant proportion of women do not realise they are pregnant until the second trimester of pregnancy: often, this is because they have been using contraception, their periods have been irregular, or they have not experienced any symptoms of pregnancy, such as sickness or noticeable weight gain. (3) Women presenting for abortion in the second trimester may, in turn, have difficulty accessing abortion services before they reach the 24-week gestational limit.

However, unplanned, or ambivalent, pregnancy is not something experienced only by women who go on to consider abortion. The third National Survey of Sexual Attitudes and Lifestyles, conducted by researchers at the London School of Hygiene and Tropical Medicine, found that 16.2% of the women in their large sample had a pregnancy that was unplanned, and that 29% had a pregnancy that was classified as ‘ambivalent’: that is, neither strictly unplanned / unwanted, nor positively planned for. (4)

It would be both impossible and unreasonable to charge women with criminal damage to their fetus if they have drunk alcohol within the first three months of pregnancy, without knowing that they are pregnant. The only safeguard women in this situation would be to refrain from drinking at all over the course of their reproductive life – or to have an abortion automatically if they have drunk alcohol. Both these courses of action would be discriminatory, by treating women of reproductive age as a class apart from other British citizens; and a gross abuse of human rights, by using the threat of criminal sanction to encourage women to abort their pregnancies.

Women who drink low to moderate levels of alcohol are adhering to the NICE guidance, which in turn is based on the recognition that there is no evidence proving that such levels of drinking are harmful. Should FAS be seen as grounds for criminal prosecution, it would only be a matter of time before claims made about a much wider range of conditions associated with FASD come to be brought; and because of the uncertainty of such diagnoses, a much wider range of women, and drinking behaviours, would be brought into the frame. This would have the effect of criminalising women who had limited their alcohol consumption, but not abstained completely.

Finally, women who have severe problems with alcohol addiction are those most at risk of giving birth to a baby diagnosed with FAS. For these women, there is a strong likelihood that heavy drinking took place before they realised they were pregnant; in other words, that alcohol had already affected the developing fetus. Following their recognition of the pregnancy, it may simply not have been ‘possible’ to abstain from alcohol completely: as, again, the NICE guidance recognises.

Alcoholism is a complex problem that often brings with it maternal behaviours and characteristics that can have an adverse effect on the fetus, such as poverty, poor nutrition, and the use of other drugs. Pregnant women with alcoholism need care and support to optimise their own health and that of their babies. If they are threatened with criminal sanction, they will be less likely to trust healthcare professionals and seek the care that they need. They may also find themselves compelled to abort their pregnancies; a drastic outcome that runs entirely counter to the principle of reproductive freedom.

Also read:

Drinking while pregnant is not a crime, and never should be. To hold pregnant women legally accountable for the healthy development of their fetus is plain wrong. By Ann Furedi, Independent, 5 Novemver

Analysis: Drinking in pregnancy – what do we know? Reproductive Review, 5 February 2014

Reproductive Review topic archive: Drinking in pregnancy

Our addiction to criminalising human behaviour makes a mockery of private responsibility. From drinking while pregnant to urinating on a war memorial, the law’s ambition has no limits. By Simon Jenkins, Guardian, 7 November 2014

The Guardian view on criminalising drinking in pregnancy: no cheers. Editorial: Who will benefit from the bid to criminalise a woman who damaged her baby by drinking in pregnancy? Guardian, 5 November 2014

References

(1) British Medical Association: ‘Fetal alcohol spectrum disorders: A guide for healthcare professionals.’ June 2007. 

(2) NICE guidance: ‘Antenatal care’.

(3) See ‘Second-trimester abortions in England and Wales’, by Roger Ingham, Ellie Lee, Steve Clements and Nicole Stone. University of Southampton, 2007.

(4) ‘The prevalence of unplanned pregnancy and associated factors in Britain: findings from the third National Survey of Sexual Attitudes and Lifestyles (Natsal-3)’. By Kaye Wellings, Kyle G Jones, Catherine H Mercer, Clare Tanton, Soazig Clifton, Jessica Datta, Andrew J Copas, Bob Erens, Lorna J Gibson, Wendy Macdowall, Pam Sonnenberg, Andrew Phelps, Anne M Johnson. Lancet,  November 26, 2013. http://dx.doi.org/10.1016/S0140-6736(13)60846-6

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