A council in the north-west of England is seeking criminal injuries compensation for a six-year-old girl with “growth retardation” caused by her mother’s alcohol consumption during pregnancy.
If Britain’s Court of Appeal agrees that the woman committed a crime, pregnant women’s behaviour could be criminalised, said Birthrights, a pregnancy and childbirth advocacy group, and the British Pregnancy Advisory Service.
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 girl was born with foetal alcohol syndrome, which can cause retarded growth, facial abnormalities, and intellectual impairment.
The syndrome was diagnosed 252 times in England in 2012 and 2013.
The charities claim there is “continuing uncertainty” in the medical profession over the relationship between drinking and harm to the foetus. They say mothers and their babies would not be best served by treating pregnant women with drug or alcohol abuse problems as criminals.
Lawyers representing the local authority are seeking to prove the six-year-old’s mother committed a crime under the Offences Against the Persons Act 1861.
In January, it emerged they had failed in their bid to win compensation on the child’s behalf from the Criminal Injuries Compensation Authority.
A written ruling by the upper tribunal of the Administrative Appeals Chamber said the child was born with foetal alcohol spectrum disorder as a “direct result” of her mother’s drinking.
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.”
The case will be heard at the Court of Appeal today, with a ruling expected at a later date.