The contentious question of whether drinking excessively during pregnancy should be regarded as a criminal offence has recently been considered by the Court of Appeal. Earlier this month the court delivered its verdict in the case of CP v CICA, a case that has attracted significant media interest because of the implications of criminalising pregnant women who harm their unborn children by drinking heavily during pregnancy. Here Dr Alexandra Mullock of The School of Law, Centre for Social and Ethical Policy at The University of Manchester says she supports the ruling and looks at the possible impact of the ruling.
After considering the appeal, which was brought by a local authority who sought to recover compensation from the Criminal Injuries Compensation Authority (CICA), in order to fund the care of a child (CP) born with Foetal Alcohol Spectrum Disorder (FASD), the court unanimously ruled that excessive drinking during pregnancy is not a criminal offence.
The court’s decision came as a great relief to those of us who had feared that the reach of the criminal law might be extended to capture pregnant women in this way. To criminalise heavy drinking in pregnancy would enable compensation to be paid to children who are, in the fullest sense, victims of tragic circumstances, yet asking the CICA rather than a local authority to fund care merely shifts the burden.
Importantly, the consequences of labelling women who drink excessively during pregnancy as criminal and thus deserving punishment, or at least censure, would inevitably deter women with alcohol or drug dependency problems from seeking professional help during pregnancy. Accordingly, criminalisation would only serve as an obstacle to progress, thwarting attempts to educate and treat vulnerable women in order to prevent the rising numbers of children born with FASD. The number of children born with FASD appears to be rising each year. The condition generally causes growth retardation and brain damage, with many victims suffering severe learning difficulties. The little girl, CP, for whom the local authority hoped to secure compensation, was born in 2007 after her mother, a young woman with chronic alcohol dependency, drank between 40 and 57 units of alcohol daily.
Units of alcohol
The National Institute for Health and Care Excellence suggest that 7.5 units of alcohol per day might harm a foetus and so it was inescapable that CP would be born with FASD after being subjected to such excessive alcohol in the womb. The legal question in this case was not whether CP’s mother should actually be prosecuted for her heavy drinking but rather whether CP might be regarded as a victim of a crime under section 23 of the Offences Against the Person Act 1861, in respect of the offence of poisoning “any other person.”
The CICA provides compensation for victims of crime, even where there has been no prosecution, and in the past it has paid compensation to victims of FASD without challenging the assertion that children born with this condition are victims of a crime. Recently, however, the CICA have amended their policy and it is now necessary for claimants to show that they are a victim of violent crime. Consequently, claimants must now demonstrate that the harm suffered is attributable to a specific violent crime.
There is no doubt that alcohol is capable of being treated as a poison, nor any doubt that CP had suffered harm as a consequence of her mother’s drinking. The main question was whether an unborn child could, in this context, be regarded as a ‘person’ in order to satisfy the requirements of the offence. Legal personality begins at birth and so unborn children cannot be regarded as victims of offences against a ‘person’. Birth is the line between being a legal person and being a less protected legal entity, which enables mentally competent women to make decisions about their health without being compelled to prioritise the health or wellbeing of unborn children.
Any tension between a pregnant woman’s right to bodily integrity and self-determination – for example, with respect to abortion and consenting to medical interventions – and the life and welfare of the foetus, has been firmly settled in favour of prioritising the rights of women. That is not to say that unborn children are legally irrelevant. For example, the Infant Life (Preservation) Act 1929 provides that it is an offence to kill or attempt to kill a foetus in utero. Furthermore, other homicide offences can be used under certain circumstances. For example, in a case that raised some similar questions to CP’s case, a man stabbed a pregnant women leading to the very premature birth of her baby who died 121 days later (Attorney General’s Reference, No 3 of 1994 [1998]).
In this case the court ruled that despite the child having no legal personality at the time of the attack, the defendant’s actions in stabbing the child’s mother were so intentionally and predictably harmful as to render the primary victim’s unborn child within the scope of his criminally culpable intent. Thus, the man was convicted of manslaughter. The argument presented on behalf of CP was that the same approach should be adopted with respect to excessive drinking in pregnancy.
The court decided that there are important differences between the offences of murder and manslaughter and the offence of poisoning under section 23 of the Offences Against the Person Act 1861. In the manslaughter case, the baby died as a consequence of extreme prematurity caused by the attack, so although the attack came before birth, the consequences continued after birth and once born, the child was capable of being a victim of manslaughter. With excessive drinking, both the administering of the poison and the consequent harm occurred before birth. Although this distinction might seem arbitrary with respect to the consequences for the victim, there are important reasons for upholding it.
