No Compensation for Those Abused in the Womb

So, the little girl with foetal alcohol syndrome did not win her case and will not be awarded compensation.And women will not be criminalized if they knowingly and against medical advice continue to drink through pregnancy.

This story had me in a quandary when I first heard about it back in early March. I blogged then about my mixed feelings over the complex issues involved. I worried about how this would be enforced and whether it would have any real effect on those who persist in drinking when surely the medical advice is well-known already.

It was a comment on the recent court decision that made me realize that in that last blog, I was making a mistake replicated by so many – I was thinking about it almost entirely from the point of view of the adults involved, and not the child.

“The UK’s highest courts have recognized that women must be able to make their own decisions about their pregnancies,” said representatives from the British Pregnancy Advisory Service.

‘Pregnancies’.

There’s my problem right there. As long as we view unborn children merely as ‘pregnancies’, then we are unlikely to accord them such rights in law as a child might be expected to receive after their birth. Calling an unborn child a ‘pregnancy’ allows us to accord it the same status as, say, a parasite, or a cyst. Calling it a ‘baby’ evokes a different response. Lord Justice Treacy explicitly stated that compensation only applies when grievous bodily harm is done to ‘a person’. A foetus is not a person in the eyes of the law.

If, during the birth of a baby, negligence or deliberate actions lead to permanent, lifelong brain damage to the child, then compensation is sought and often received. There is a recognition that this child’s life has been irrevocably altered by the actions of another, and compensation is necessary, at the very least, to ensure that the child will have the support and therapies and equipment they will need. Sometimes there is also a punitive element to the compensation.

But, according to the new ruling, a woman, making ‘her own decisions’ about her pregnancy, can knowingly take action that will permanently harm the child, and no compensation is to be forthcoming. She can continue to knowingly harm that child right up to the point of birth and not be held culpable.

I am pro-life, and I’m aware that this standpoint will colour my views on the matter. But I think we can all agree that un-terminated ‘pregnancies’ will eventually become ‘children’. The damage may be done during pregnancy, but the effects will be with the child, with the adolescent, with the adult, for the rest of their life.

Do I think we should criminalize women who drink or take drugs or smoke during pregnancy? I’m not entirely sure that I do. While I believe that unborn children should be accorded far more rights than they currently are, I also believe that, in this unique relationship between mother and unborn child, competing rights should be weighed in the balance – I do not believe that the rights of the unborn should, of necessity, trump the rights of the mother. The case detailed here was an extreme (although not uncommon) one where the mother reportedly drank several cans of strong lager and half a bottle of vodka per day, but there are many other, greyer areas where the daily decisions of a mother carry a risk for an unborn child. Where do we draw the line? Drinking? Smoking? Eating unpasteurized cheese? Driving a car? There are many activities that could potentially harm an unborn child. What about women who know that they carry a genetic abnormality who take the risk of passing this on to their unborn child? Or women who are HIV+? Once opened, this can of worms could easily become totally unmanageable, and, as I said in my previous blog, the monster that is addiction will not be dealt with through punishing the addicted.

But, sadly, we live in a time and a society where even getting recognition for the struggles and difficulties faced by children with FASD and other conditions caused by mistreatment in the womb is extremely difficult. These are children who will face the lifelong impact of what has been done to them. Support, therapy and, yes, money is needed for those children and those who care for them. Where is this money to come from? How many times have I heard of adoptive parents desperate on behalf of their children who have struggled to get even the most basic therapeutic input? The cost on the health service and education alone must be astronomical, not to mention the personal cost for the young people and their parents and carers.

So, if the mother is not to be held responsible, then who will bear the responsibility for this great harm?