In a ruling described as “important to women everywhere”, three Court of Appeal judges rejected a bid by the woman’s brain-damaged daughter “CP”, now aged seven, for criminal injuries compensation.
The judges ruled a foetus in the womb was not a “person” who could be unlawfully harmed.
They held that “a mother who is pregnant and who drinks to excess despite knowledge of the potential harmful consequence to the child of doing so is not guilty of a criminal offence under our law if her child is subsequently born damaged as a result”.
Janet Fyle, professional policy adviser for the Royal College of Midwives, said: “We welcome this ruling as it reinforces the current law on the status of the foetus and offers protection to pregnant women, rather than criminalising them for engaging in behaviour which is legal but is likely to cause harm to her.”
But she added: “It is important to give a clear message about alcohol avoidance in pregnancy because of the risks it presents to the health of both the mother and baby.”
The ruling in London was a blow to a local authority in the North West of England which now cares for CP and fought for compensation.
She was born in June 2007 with foetal alcohol spectrum disorder, also referred to as foetal alcohol syndrome, which can cause retarded growth, facial abnormalities and intellectual impairment.
CP suffers with learning, development, memory, and behaviour problems.
The judges heard that 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.
CP’s compensation claim was based on the assertion that her mother had committed an offence against her as defined under the Offences Against the Person Act 1861 by drinking excessively during pregnancy.
Ben Collins, appearing for the Criminal Injuries Compensation Authority, asked the court to reject CP’s legal challenge.
He told the judges: “There is a conflict of ideas about what is or is not dangerous, not only in terms of drink but also in terms of smoking and food.”
Dismissing CP’s appeal, Lord Justice Treacy said an “essential ingredient” for a crime to be committed “is the infliction of grievous bodily harm on a person — grievous bodily harm on a foetus will not suffice”.
Lawyers for CP expressed “disappointment” with the ruling and said they were considering their options..