Legal Test Case On Foetal Alcohol Syndrome

Recent publicity about a claim on behalf of a child affected by foetal alcohol syndrome is causing unnecessary public alarm. There appears to be an outcry at the prospect of "criminalising” women, prompting at least two leading women's charities to suggest that it could set a legal precedent to prosecute women who drink while pregnant.

In reality the claim does no such thing. It is not an attack on women and it does not, as some have suggested, call into question a pregnant woman's "fundamental right to bodily autonomy”.

In the particular case in question the local authority claimed that a mother's reckless consumption of alcohol whilst she was pregnant had damaged a child whilst in the womb and, as a result, the child suffered foetal alcohol syndrome.

But this is not a criminal prosecution. It is a claim for compensation to the government funded Criminal Injuries Compensation Scheme and to succeed under the scheme it is necessary to prove that a "crime of violence” has been committed. The argument in this case is that the mother's actions amounted to the crime of poisoning.

The important points to bear in mind here are that the mother has not been prosecuted and that it isn't necessary for a prosecution to have taken place in order to obtain compensation under the Scheme. Whether or not the mother's consumption of alcohol constitutes a "crime of violence” for the purposes of compensation does not mean that it would be considered a crime for which the mother could be prosecuted. Indeed the UK has never to date sought to make mothers criminally responsible for behaviour that may endanger their foetus.

This case, whatever the outcome, is very unlikely to change that position. It will not criminalise women, it will not set a legal precedent to prosecute women who drink while pregnant and it will not lead to prosecutions against women.

What this case is really about is the innocent victim. It is about ensuring that if an innocent victim (the child) has been damaged as a result of a mother's reckless consumption of alcohol then he or she should be entitled to compensation which will help to improve his or her life. It may also serve as a prompt to government to issue clear and definitive medical advice about the dangers of drinking during pregnancy.