According to legal papers lodged with the judge there is to be a court hearing to decide the rights of a child whose mother drank alcohol during pregnancy. The case is to decide whether the child should receive compensation. If so, it could pave the way for drinking during pregnancy to become a criminal offence.
In the North East of England, a local authority, which cannot be named for legal reasons, is looking to charge a woman under the Offences Against the Persons Act 1861, by drinking during her pregnancy. Her six-year-old girl who is now living with foster parents was born with foetal alcohol syndrome or FAS as it is commonly known.
In opposition, the British Pregnancy Advisory Service and legal charity Birthrights have asked to address the court. They believe that if this is introduced it would undermine women's freedom to make decisions for themselves while pregnant.
Alcohol damages and kills brain cells in developing foetuses by reducing their oxygen and nutrient intake. In recent studies it was found that more than half of women drink more than the recommended daily amounts, and a quarter of those drink more than twice the recommended amount. In 2002 some 200,000 women were admitted to NHS hospitals because of alcohol abuse. By 2010 the figure was 437,000.
Symptoms expressed by FAS children vary in severity. Usually they include small, narrow eyes, a small head, and a smooth area between the nose and the lips. They may also show signs of some or all of the following symptoms: Problems with their ears, mouth, and teeth. A weakened immune system. Epilepsy. Liver, Kidney or Heart defects. Height and weight issues. Cerebral palsy and other muscular problems.
The case has sparked a large debate amongst many health care professionals, parents and organisations regarding the ethics of potentially criminalising pregnant women who turn to drink.
In a legal submission, the two organisations stressed that if the court agreed with the council; ‘Such a decision would treat pregnant women differently from other legally competent persons, and threaten their right to make autonomous decisions about their lives and bodies. As well as undermining women's choices, it might also deter women who need support from seeking help during pregnancy and put health professionals under pressure to report women suspected of drinking to the police.’ It added.
Solicitor Neil Sugarman, who is representing the unnamed council, said ‘This is an unusual and horrific case. It centres around whether by drinking while pregnant, and knowing it would affect the baby, a crime has taken place.’
Mr Sugarman has previously said that his firm of solicitors is currently representing 80 other children nationally, and that all of these children have suffered physical and mental damage from their mothers' drinking during pregnancy.
The Department of Health guidelines currently state that ‘women who are pregnant or trying to conceive should avoid alcohol altogether’.
Whilst the The National Institute for Health and Care Excellence concedes there is "uncertainty about how much alcohol is safe to drink in pregnancy".
According to reports from the Guardian newspaper In 2012-2013 there were 252 diagnoses of the syndrome, which can leave victims severely mentally and physically impaired, compared with 89 in 1997-98. Cases are up 37% since 2009-2010.
It is a fear amongst FAS charities and health professionals that these numbers are the tip of the iceberg. As there isn’t always a definitive physical sign of the condition, it is thought that many are going unnoticed.
The case has been going on for four years. In a previous tribunal of this case, Judge Howard Levenson found that there had been ‘administration of a poison or other destructive or noxious thing, so as thereby to inflict grievous bodily harm’. However, the Criminal Injuries Compensation Authority appealed against this decision and was backed by the upper tribunal of the administrative appeals chamber. It ruled that a crime could not have been committed because the girl was unborn at the time and therefore "not a person".
There is no change yet as the court of appeal is set to hear the case later this year.
