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Risk in criminalising women who drink while pregnant

A pregnant woman is warned she is damaging her unborn baby.

If she doesn't stop drinking the child will suffer irreversible brain damage. She continues to drink and the baby, a girl, is damaged. Has the mother committed a crime?

My hearts says yes; my head worries about the implications.

Let's deal with my heart first. What this woman has done is a great wrong. She has behaved immorally. The child will suffer a lifetime of disability when she might have had a healthy existence. The tragedy was entirely avoidable.

But can the child be regarded as a victim of crime for the purposes of compensation? That's a trickier question, and one that makes me stop to think.

The decision will be made by the Appeal Court in England. It could effectively make criminals of women who drink and damage their unborn babies.

The case concerns a six-year-old girl who has foetal alcohol syndrome. She has brain damage caused by her mother's drinking. The mother was warned about the possible damage but carried on anyway. A local authority in the north-west of England applied for compensation under the criminal injuries scheme to help pay for the child's special needs.

A tribunal found in the council's favour. According to the council's lawyer, it found the mother's actions were "tantamount to poisoning the child". However, the Criminal Injuries Compensation Authority fought against the decision and won.

The appeals tribunal found there had been "administration of a poison or other destructive or noxious thing, so as thereby to inflict grievous bodily harm". But, crucially, it decided a crime could not have been committed because the girl was not born when the damage was caused. Therefore, she was "not a person".

The council is preparing to take the case to the Appeal Court.

In my heart, I hope it decides in favour of the council and the child. But, if it does, imagine the implications. If the unborn child is classified as "a person" in law, what does that mean for abortion and a woman's right to choose?

Tricky, isn't it?

Now think about this. The first three months of pregnancy are critical for foetuses exposed to alcohol. Much of the damage is caused then. Yet this is precisely when many abortions take place.

Also, to add another complication, a woman who goes out drinking on a Friday night might not be aware of the risk. Four in ten don't know they are pregnant by this stage.

In Canada, some pubs have pregnancy-testing kits. Women can check they're not having an unplanned pregnancy before having a drink. Thanks to a foster mother who has cared for a string of afflicted children, similar kits will soon be introduced to the north of England as a pilot scheme.

In case you're wondering how many children are damaged this way, it's too many. As many as 7000 children a year are reported to suffer from alcohol damage in the UK. It may be higher.

Philip May, a professor of family and community medicine, has been studying foetal alcohol spectrum disorder in various parts of the world for decades. His research, conducted in schools, has contradicted previous estimates about damaged children. Instead of the figure being between two and seven children in every thousand, he believes it is between two and seven in every hundred. He includes all levels of damage.

Only those at the extreme end are given the diagnosis of foetal alcohol syndrome. They are identified by a set of symptoms and a particular facial structure.

But Professor May says the damage can vary according to how much the mother drank and at which point in the pregnancy.

The evidence is clear that alcohol is poison to the developing brain.

Previous generations might have had a drink during pregnancy because they knew no different. Crucially, they also drank differently. Women a generation and more ago might have enjoyed one or perhaps two small glasses of something alcoholic at the weekend. Today, many more women drink until they are drunk.

Will it do any good to criminalize them? Should we expect them to be able to stop overnight?

Let's start with those who can stop drinking. Too many of them remain ignorant of the potential for damage. Surely what we need is a national information campaign that doesn't pull its punches.

Some women think wine and beer are safer than spirits. They aren't. Some think it's OK to have one or two nights off the wagon during pregnancy. The dangers are not fully realised. There have been so many food and drink scares that we have grown blasé about ignoring them.

Secondly, we need to be realistic about those who can't stop drinking. Alcoholism is an epidemic and chief among its symptoms is denial.

To ask an alcoholic to stop drinking the moment she knows she is pregnant is as challenging as asking a heroin addict to pack in drug-taking overnight. Most cannot withstand the craving.

They need support. If there isn't enough, does that make us negligent too?

So where is the law's place in all of this? A woman who poisoned her child after birth would be charged with murder. Why not a woman who knowingly does the same before birth? And if the state steps in with the full force of the law, how can it also countenance legal abortion?

In a cold and commonsense way, the obvious difference is that the damaged child will cost a lifetime of care. For many, that includes fostering or adoption. The terminated pregnancy will not be a drain on the welfare bill. That's the practical difference, if not the moral one.

There is also the duty of care. Where a woman intends to bring her child into the world, heavy drinking is reckless.

There is a debate about making smoking in a car with a child present illegal. An MSP is planning to introduce a bill to Holyrood. The House of Lords supports the idea. The Commons is less certain. Deputy Prime Minister Nick Clegg says it would be unenforceable. How, then, would anyone police drinking in pregnancy? Will the contents of their glass be tested in public houses? Will roaming patrols be able to enter their homes? It's impossible.

On reflection my view is this. There is much that can and should be done before we criminalise pregnant women. I have faith that education delivered early and often will do much to curtail the numbers of babies born with this disability. For the rest, we need better, more available, more sophisticated services to deal with alcohol addiction.

If we don't, the epidemic of secret drinkers will become a tidal wave of damaged children. And the financial cost of their care will be as nothing against the enormity of the heartbreak about their unnecessary suffering and the loss of the life they might have lived and the people they might have been.

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