Criminalising mothers: the beginning of the slippery slope

News & Analysis

18th November 2014

The recent case reported in the press of a 17 year old mother who deliberately binge drank alcohol during her pregnancy, resulting in a baby with Foetal Alcohol Syndrome (FAS) and who now stands accused of administering a ‘noxious substance’ to the baby and criminal negligence, represents the beginning of what may subsequently morph into the repudiation of some of the rights women have achieved in the last two centuries.

FAS occurs in 1 in 3000 births and is characterised by growth deficiency, facial abnormalities and impaired cognition. Adult complications involve psychiatric issues, drug addiction and cognitive deficits. Financial societal costs of FAS are over $300 million dollars in the US alone. It is irreversible and caused by heavy, frequent alcohol consumption in pregnancy. Around 10-30 percent of women will drink alcohol during their pregnancy, with around 10 percent admitting to binge drinking.

NICE guidelines suggest pregnant women drink no more than 1-2 units, 1-2 times a week and never get drunk, with this representing a relatively ‘safe’ level of consumption. Studies from Sweden however, suggest that subtle cognitive defects will be found in the infants of women who drink even small quantities of alcohol during pregnancy.

The four basic principles of medical ethics are clearly defined, non-negotiable and sacrosanct. These are autonomy (the right to refuse or accept treatment), beneficence (doctors’ duty to improve the wellbeing of patients), non-maleficence (doctors must always endeavour to ‘do no harm’) and equality.

According to UK law, consenting/ declining to consent to medical treatment is the right of anyone deemed competent under the Mental Capacity Act 2005. In the UK, children under the age of 18 can consent to treatment if they demonstrate the ability to comprehend what they are consenting to (the Gillick competence), with those aged above 16 able to consent as though they were adults of 18 years old and above (Family Law Reform Act 1969). In this case the young lady was herself only 17 so was barely an ‘adult’ at the time of her alleged ‘offence’.

The developing foetus however has no legal status in the eyes of the judicial system. As a result, it has traditionally been left up to the pregnant woman to decide whether she wishes to consent to treatment for a condition that may affect that foetus, or if she wishes to voluntarily engage in harmful behaviour.

To criminalise a pregnant woman for actions that may result in harm to an unborn baby may be satisfying from a ‘moral’ point of view, and satisfy the mob, but ‘moral outrage’, emotion and mob rule are not the basis of the law in a civilised country and society.

To use the Law as a blunt instrument to get a pregnant woman to comply with healthy behaviours is at first glance, very tempting. If pregnant women were to avoid unhealthy food, tobacco, alcohol and drugs, the system would be saved the billions of pounds currently spent annually on the treatment of both these women and their babies. Utilitarianism suggests that this course of action is the correct one.

I fear that this temptation to criminalise misbehaviour will lead to two sets of circumstances, both of which would involve the violation of the principles of medical ethics.

The first, situations where women would be held responsible and potentially face prosecution, for complications befalling the foetus, for example not delivering in hospital if she is a ‘high-risk’ pregnancy, refused a caesarean section for a breech baby, didn’t take her folic acid supplements and had a baby with spina bifida, or even if she did not lose excess pre-pregnancy weight and ended up with a baby dying in-utero. The argument would run that these were all ‘preventable bad outcomes’.

The second, would be where the rights of the foetus were considered paramount and superior to hers, with pregnant women losing their ability to consent should they refuse to follow medical advice unquestioningly, something very easily achieved by labelling them ‘incapable of consent’ on the basis of a lack of ‘competence’. Doctors would then have effective power of life and death over any pregnant woman, something that would represent medical patriarchy at its worst.

To anyone who thinks I am merely scaremongering I say this: Anti-terror legislation, designed to help thwart terrorism, is now being used by Councils to spy on people not taking out their rubbish in a timely manner! Never underestimate the ability of the unscrupulous to abuse the Law, or of laws being used for purposes other than what they were intended for.

The rights of a mother should always take precedence over those of the unborn, no matter how unpalatable the results. A woman’s autonomy is non-negotiable.