Court Says Fetal Alcohol Syndrome Isn’t a Crime

A UK court wouldn’t award damages to a child with fetal alcohol syndrome because, they said, the damage was done in utero.

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A UK court of appeal ruled last week that “CP,” a seven-year-old girl with fetal alcohol spectrum disorder (FASD), could not be awarded damages after her mother drank heavily during pregnancy. People with FASD have symptoms that vary in severity, but they may include growth deficiency and intellectual and developmental disability. CP’s mother, known as “EQ” in court papers, drank “half a bottle of vodka and eight cans of strong lager a day” while she was pregnant with CP, according to a story in The Guardian. As a result, according to the court’s recent ruling, “There is no dispute that CP has in fact sustained grievous bodily harm.”

The primary reason CP’s suit was dismissed, however, was that the harm her mother caused occurred while CP was in utero. The unborn are not considered “persons” separate from their mothers in a legal sense; legal persons are accorded rights and protections by the state. “It is well established that a fetus is not a ‘person’; rather it is a sui generis organism,” the ruling stated. During pregnancy, then, CP could not be considered a separate legal entity from EQ. Thus EQ’s drinking didn’t harm a specific person.

Eva Kittay is Distinguished Professor of Philosophy at Stony Brook University/SUNY, and specializes in the ethics of feminism and disability. “Making the fetus another ‘party’ could have dire consequences for a mother who isn't adhering to rules which might not have good basis in fact,” she wrote in an email to The Daily Beast. “It may discourage pregnant women who are addicts from seeking treatment since they would be potential targets for this sort of prosecution.”

Eric Scheidler, Executive Director of the Pro-Life Action League, shared some of Kittay’s concerns about the criminalization of maternal behavior during pregnancy. “It’s a really difficult issue we’re dealing with here,” he said. “We want to try to offer to help to women with addiction problems, but at the same time we don’t want them to avoid prenatal care or to seek an abortion.”

However, Scheidler believes CP’s case is “in some ways simpler” than women who are prosecuted under criminal laws. EQ was not criminally prosecuted—CP sought civil damages. “There’s an opportunity for the child to be helped and this panel of judges is denying her that. This case was not an effort to penalize the mother, it was an effort to get help,” said Scheidler.

Kittay, however, remains concerned that even though this case is a civil suit and not a criminal suit, it’s still potentially damaging to pregnant women with addiction problems. “I understand the need for resources for the care of the child, but often these women will lack funds to begin with,” Kittay stated. “The end of the process simply leads to criminalizing the woman. Resources should be available to care for babies who have disabilities,” she said, and not only those babies who have won legal claims.

Until this year, there was no U.S. state that criminalized harmful maternal behavior, such as alcohol consumption or drug addiction, during pregnancy. In July, Tennessee became the first state to pass a law that makes women who use narcotics during pregnancy subject to criminal penalties. A wide array of professional organizations, including The American College of Obstetricians and Gynecologists and the American Academy of Pediatrics, oppose the criminalization of maternal behavior during pregnancy.

There have recently been efforts in a few states to declare a zygote in utero a person, and thus a separate legal entity from the mother. “Personhood measures,” which demand that the state recognize legal personhood at conception, were put to referendum three times in Colorado, once in Mississippi, and another time in North Dakota. If they had passed, presumably mothers who drink during pregnancy could be charged with felonies. In all cases, though, the measures were solidly defeated.

Even before Tennessee’s law went into effect, however, hundreds of women in most states had been criminally prosecuted or civilly detained because of drug or alcohol use when pregnant. These detainments were often justified by laws that do not mention pregnancy specifically. One study of detainments of pregnant women showed that they occurred overwhelmingly to economically disadvantaged women, and disproportionately to African-American women. “Our study documents hundreds of arrests or equivalent deprivations of liberty, with the majority relying on interpretations and applications of criminal laws that were never intended to be used to punish women in relationship to their own pregnancies,” the study states. “In virtually every case in which we could identify the underlying legal theory, we found it to be the same as that asserted by proponents of personhood measures: namely, that the fertilized egg, embryo, or fetus should be treated as if it were completely legally separate from the pregnant woman herself.”

It is this latter legal theory that the decision in CP and EQ’s case very clearly rejected. Scheidler considered the decision “lamentable.” While Scheidler expressed opposition to the Tennessee law and other laws that specifically criminalize maternal drug and alcohol use because they disincentivize pregnant women from seeking prenatal care or continuing with pregnancy, he is opposed to the legal melding of the mother and the fetus. He said, “Most fundamentally, in this decision, the unborn child is not a person. It’s a human organism but not a person. What is a human organism that’s not a person? It’s dangerous to pick out any subsection of humanity and say they have no rights.”

Although CP’s case was a civil suit, in the course of its decision the court found that no crime had occurred. Kittay agreed with the court. “Criminalizing these women can lead to the sort of horror stories we hear in the U.S. of pregnant addicts being forced to go cold turkey, to being locked up, to having to give birth in chains,” she said. What are needed, she argued, are neither criminal penalties nor civil damages. Rather, “we need much more and much better ways of treating pregnant woman who abuse drugs: more treatment centers, more therapists, more detox centers.”