The responsibility of a mother for her unborn child seems to be an undisputed fact in our society, and, recently, a question has been posed as to whether the mother of a child born with Foetal Alcohol Syndrome (FAS) can be punished by law for excessive alcohol intake whilst pregnant. The child in the case is now aged seven and living with a foster family, and the mother accused of a ‘crime of violence’ in court, for drinking up to ‘half a bottle of Vodka and eight cans of strong lager a day’ whilst pregnant.

 Alcohol is, of course, a drug, and dependence upon it should not be viewed any differently to any other form of drug addiction.

The idea that ‘if you drink, your baby drinks’ is extremely emotive. The amount of alcohol consumed by the mother in this case is certainly shocking. However, building a legal case to prosecute her for her actions is not productive: the mother had for a long time suffered from alcoholism, something we accept as a disease, an addiction. This on its own is generally looked upon with sympathy and compassion, and is also generally thought that the addict is ultimately only hurting themselves. This is rarely the case.

Alcohol is, of course, a drug, and dependence upon it should not be viewed any differently to any other form of drug addiction. In this instance, sympathy is being drawn away from the mother, who normally would be seen as a victim, due to the fact that she was pregnant.

The responsibility that society attributes to mothers for their own child, particularly when in the womb, is thought of as a sort of common sense. It seems beyond doubt that the pregnant mother is ultimately responsible for the child’s well-being- this appears to be the basis of the prosecution. If the mother is responsible for her own actions, and also the safety of her unborn child, then by drinking and harming her baby, she has, in effect, failed.

However, it is arguable that she cannot be attributed full responsibility for her actions if she was suffering from alcoholism. This, then, raises the question: who exactly is responsible?

The foetus itself has no legal rights as it cannot survive independently of the mother. Once the baby is born, however, it gains legal status as a person. A baby can be taken away from an alcoholic mother’s care, but a foetus cannot be removed from an alcoholic mother’s womb. As the state has no power to help the baby before it is born, the suggested solution to this in this case is to criminalise drinking whilst pregnant- if this were so, we are essentially accepting a dual responsibility for unborn foetuses between the state and the parent, with the judgement of the state able to override the judgement of the mother.

This is why bringing the law into this matter is so complex, messy and, ultimately, not the answer. Of course it is evocative to demand justice for the child, and to assure that no child needs to be born with FAS. It is another thing to suggest that pregnant women have different and diminished rights to other people; rights that can be so easily overruled by the state.

In a society where we consider addiction to be beyond an individuals control, it seems draconian to prosecute someone for it.

It would seem backwards and unnecessarily punitive to prosecute someone for being an alcoholic in any other circumstance. This case seems to give rise to a snowball of consequences. If we can prosecute for harm done to a child before it is born, what does that mean for abortion laws? If we can prosecute a person for having a disease like alcoholism, do we then have grounds to prosecute someone for becoming pregnant who has a different disease?

Of course this is merely conjecture, but in a society where we consider addiction to be beyond an individuals control, it seems draconian to prosecute someone for it. Certainly, this case highlights that something has gone terribly wrong, but it is not with the justice system.

More needs to be done for people with any form of addiction, and treating them as criminals does not help. It is terrible that the child now has to live with FAS and the developmental issues that brings. Rather than devolve into knee-jerks of prosecution after the damage is done, more time and money ought to be invested with health workers and councils to help people with serious addiction, so that this kind of case never occurs again.

Samuel Lewis