A council on northwest England plans to bring legal action to establish liability for criminal damages by women who drink while pregnant, with resultant damage to their newborns. A tribunal in 2011 had ruled that a child had sustained personal injury "directly attributable to a crime of violence," and so was eligible for a payment from its mother. The holding came in spite of the fact that the mother had never been criminally convicted. The court simply held that, regardless of the lack of prosecution or conviction in her case, she had in fact committed the crime of maliciously administering poison so as to inflict grievous bodily harm, a crime under section 23 of the Offences Against the Person Act 1861. The upper tribunal of the Administrative Appeals Chamber reversed the holding, however. (The opinion can be downloaded here.) The Appeals Chamber agreed that there had been “administration of a poison or other destructive or noxious thing, so as thereby to inflict grievous bodily harm,” but found that the fetus who was damaged by the mother's drinking was not a "person" in legal terms at the time of her injury. The case now goes to the Court of Appeal.
It's important to recognize that the case at bar would set precedent for cases quite unlike it in the future. In the case at bar, adoptive parents of a child damaged by fetal alcohol syndrome are seeking payments from the child's biological mother--payments due them pursuant to criminal law. But if drinking-while-pregnant is criminal, the ordinary case of prosecution in the future may look rather different. It will involve not payment of damages by a biological mother to a third-party adoptive parent, but imprisonment of a new mother shortly after her child's birth.
Criminalization of drinking-while-pregnant seems like a terrible idea. It is obviously true that drinking while pregnant can damage one's fetus. It is also obviously true that the majority of women who drink while pregnant do not thereby damage their fetuses. The relevant studies seem to show no genuinely "safe" level of drinking during pregnancy, but also show that significant drinking during pregnancy often results in no harm to the fetus. In these circumstances--and given the addictive nature of alcohol--can it really be true that criminalization of drinking-while-pregnant is really the best, or even a reasonably good, method of reducing harm to fetuses from maternal drinking?
Criminalization will make it difficult for pregnant women to speak to their physicians or nurses about their drinking habits. Threat of criminal prosecution for drinking could be used as a lever against pregnant women by abusive men. Criminalization will subject visibly-pregnant women not only to prosecution, but also to public abuse and accusations from strangers, even though the actual danger to fetuses from moderate later-term drinking is minimal.
Women should be informed of the dangers to their fetuses of drinking. Alcoholic pregnant women should be offered help. The state's money is better spent on public service announcements and counseling sessions than on prosecutions and jail-cells. I'm guessing that no one who knows that drinking during pregnancy might damage her child, but who drinks anyway, does so with malicious intent, or does so without regard to the dangers to her child. People who don't know the damage they may be causing, or who simply cannot stop their drinking due to addiction, need help rather than punishment.