In Britain, the Court of Appeal is being asked to decide in a test case whether a pregnant woman committed “a crime of violence” against her child when she drank alcohol to excess while pregnant.
Lawyers for child “CP”, who cannot be named for legal reasons, are asking three judges to rule the seven-year-old is entitled to compensation as a victim of violent crime after being born with an alcohol-related disorder.
If the appeal succeeds, it could pave the way for pregnant women’s behaviour to be criminalised, according to the British Pregnancy Advisory Service and Birthrights group.
The appeal judges heard a large number of similar claims for compensation by children allegedly harmed by alcohol in the womb were awaiting the outcome of CP’s appeal, with solicitors already instructed in around 80 such claims.
The court heard CP suffers from foetal alcohol spectrum disorder (FASD) which can cause retarded growth, facial abnormalities and intellectual impairment.
Doctors say CP’s condition is a consequence of her mother’s excessive drinking.
FASD was diagnosed 252 times in England in 2012 to 2013.
A council in the North West of England which now has responsibility for CP is fighting for an award on her behalf under the Criminal Injuries Compensation Scheme.
The application was rejected by the Criminal Injuries Compensation Authority (CICA) in November 2009 on the grounds CP had not sustained an injury “directly attributable to a crime of violence”, as required by the Offences Against the Persons Act 1861.
A first-tier tribunal allowed her appeal in April 2010, but the Upper Tribunal of the Administrative Appeals Chamber ruled last December that, for a crime to be committed, the alcohol would have to be administered “to another person”.
But, in the eyes of the law, an unborn child was not another person.
The Upper Tribunal 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.”
John Foy QC, appearing for CP, asked the appeal court to rule the Upper Tribunal was wrong and CP was “another person” while still a foetus in the womb “or became so when she was born – when the offence against her was completed”.
He said the mother was a young woman with an alcohol addiction whose excessive drinking amounted to “administering a noxious thing – a destructive thing” to her unborn daughter and it inflicted grievous bodily harm.
Mr Foy also argued: “Drinking to excess with knowledge that it may harm the child is unlawful.”
Ben Collins, appearing for the CICA, is opposing the appeal which is being heard by Lord Dyson, the Master of the Rolls, sitting with Lord Justice Treacy and Lady Justice King.
Mr Collins told the court the CICA contended that in CP’s case there was no act of administering a noxious substance to another person.
“We say this is important for the authority because there is no unlawful act by the mother in these circumstances,” he said.
Before today’s ruling Ann Furedi, chief executive of bpas, and Rebecca Schiller, co-chair of Birthrights, said: “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 foetus, 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 charities claim there is “continuing uncertainty” in the medical profession over the relationship between drinking and harm to the foetus.
And they say that mothers and their babies would not be best served by treating pregnant women with drug or alcohol abuse problems as criminals.