In a vital case in the United Kingdom, the Court of Appeal has ruled in the case of CP that a mother cannot be held criminally liable for causing FASD in her child. There are certainly many who might wish to see this happen. Indeed, it is happening in several American states. The UK decision is important as it recognizes that several key issues. In reading the decision, I am reminded of main points of debate:
- Is a foetus a child? - In Canada, this has been rejected by the Supreme Court of Canada. If the argument is accepted, then there is a wide range of behaviours that would fall under the rubric of causing harm to a child in utero - think of smoking, an unhealthy diet, obesity, taking of certain prescription medicines and so on.
- Should a mother be criminally responsible for behaviour she could reasonably know would harm the child? This raises more than alcohol and brings back the discussion on a wide range of behaviours. But, while it stays that a mother who is drinking heavily should be expected to know that she will harm her child, it would not be hard to extend this argument against women whose various medical conditions make a pregnancy high risk. Should that mother also be held criminally responsible because she chose to take a risk that had a high probable outcome of harm?
- If the foetus is not a child within the meaning of law, then harm done in the pregnancy cannot be a criminal act. On this point, the UK Court of Appeal notes:
- The reality is that the harm has been done to the child whilst it is in utero. The fact that if the child is born alive it will suffer the consequences of the insult to it whilst in the womb does not mean that after birth it has sustained damage by reason of the administration of the noxious substance. One only has to cast one's mind back to the Thalidomide tragedy. The injury was done to the affected children by the administration of the drug whilst they were still in the womb. Those children who were born affected were born with missing or ill-developed limbs. Whilst they suffered the consequences on a lifetime basis after birth, they did not sustain any additional damage after birth by virtue of administration of the drug.
- Reference to the expert evidence of Dr Kathryn Ward, an experienced consultant paediatrician, whose very detailed report was before the First Tier Tribunal, (and which was not disputed), shows that the harm which is done by ingestion of excessive alcohol in pregnancy is done whilst the child is in the womb. The child would then, when born, show damage demonstrated by growth deficiency, physical anomalies and dysfunction of the central nervous system. Very often, as in this case, the full extent of retardation and damage will not become evident until the child reaches milestones in its development, at which point matters can be assessed. The fact that such deficits cannot be identified until that stage does not constitute fresh damage. It merely means that the damage was already done but has only then become apparent.
- It seems to me that this is fatal to the appellant's contention. The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was whilst CP was in the womb. At that stage the child did not have legal personality so as to constitute "any other person" within the meaning of s23. The basis upon which the actus reus is extended in a manslaughter case cannot apply here since nothing equivalent to death occurred to CP after her birth.
Those who argue the right to life will find this decision very disappointing. They would suggest that the foetus is a life from the moment of conception. However, to sustain this legally requires that we are, as a society, prepared to hold mothers to a very high standard of behaviour in pregnancy that must go well beyond alcohol to all behaviours that have a high probability of causing harm.
But there is another side to this. If we accept that argument then we must also hold that society has a very high obligation to protect the foetus that would include offering intensive medical help to all at risk women and pregnancies. Thus, an alcoholic or drug addicted women would be entitled to the care of the state in order to protect the foetus.
This then takes us down the road of forcing treatment on mothers who's e behaviours may place a foetus at risk. Those who may jump on that bandwagon will most likely think of women with alcohol and drug problems. They may find the moral ground of forcing treatment on these women as a group easy due to the nature of their disease (addiction) and a belief that it is a moral versus medical issue. But what then are we to do with the poorly managed diabetic, the heavy smoker, the mother who has been advised against pregnancy due to medical risks - are we to force treatment on them?
What then are we to do with one of the higher risks for children - families who live in poverty where access to a healthy diet and good pregnancy care are very challenging? Is society willing to now say that they should have forced supports? There are many more children born to women with various forms of higher risk pregnancies arising from medical and social conditions other than alcohol.
As for drug use in pregnancy, we can fall very short in understanding the long term implications. A study by Dr. H. Hurt in Philadelphia found that the "crack baby" epidemic of 25 years ago has not materialized in the way it was predicted. Many of these children are doing well. Poverty may have been a bigger issue.
All of this is not to say that we should fail to help mothers be the best they can at being pregnant. We should - but that is not accomplished through criminalizing or jailing mothers - that is the ultimate in mother shaming. It is be education, community supports, health care and harm reduction.