This is our truth, tell us yours
The court of Appeal has been asked to rule on whether a mother who drank heavily in pregnancy is guilty of poisoning her child. The Local authority is claiming that her choice to drink despite being warned of the risks was a deliberate attempt to harm her child (ie poisoning) and that therefore the criminal injuries fund should pay compensation. Earlier today the lawyer for the local authority was on the radio and my blood froze as he explained their arguments.
His line was that if a mother shook a baby and caused brain damage it would be a crime, so what was the difference when a drank excessively and caused brain damage in the fetus. He also said they were relying on a case where a heavily pregnant woman was stabbed, and whilst the baby was born alive the injuries it sustained caused it to die not long after birth. He seemed to think this meant the person was prosecuted for harming a fetus. Now I am no lawyer but in both of Neil Sugarmans examples he seems to be ignoring one massive thing, birth.
A fetus under the law has no rights, it is not a person until the moment it is born. The case of the baby who died from injuries sustained in the womb rests, as far as I can see, on the fact it was born alive. It is no different in fact from anyone who dies at a later date from injuries sustained. The shaken baby versus fetal alcohol syndrome example is exactly the same. One concerns a living baby with rights, the other a fetus. However the whole case here rests on the 1861 offences against the person act, so is saying a fetus has the rights of a person.
Now more legally qualified people, including Carter who will no doubt put me right on any legal mistakes here, have quoted before the adage “hard cases make bad laws” and I can see the need generally for flexibility and what might be called the human element in the justice system. However this is an area where we have to have very clear lines, and rock hard laws. By only giving a baby rights the moment it is born we are saying that a woman’s bodily autonomy is sacrosanct, that women are more than incubators for the fetus, and their needs, wants and desires have primacy.
This may seem harsh, and it may be worth pointing out here I am personally anti abortion, but consider the alternative. The case of Savita in Ireland showed what happens when the unborn are placed above the born in the eyes of the law. A senseless death because of the concept that the fetus had rights, more rights than the woman in whom the fetus was growing. Savita was truly seen as nothing more than an incubator for her child.
If the local authority in this case are allowed to say that there was a criminal act of poisoning then the court is saying the fetus has rights. Fetal Alcohol Syndrome can affect the unborn in the very first weeks of pregnancy, well below the 24 weeks up until which it is relatively simple to get an abortion in the UK. (Assuming you don’t go to a religious backed clinic who will tell you that having an abortion turns you into a cancer ridden child molester).
We have no right to an abortion in the UK, simply a system which says the mother must be at some form of risk and doctors who are more or less willing to agree a woman is best placed to say she feels unable to have a baby.If however the Supreme Court rules that a fetus can be poisoned, that it has rights, then how long will it be before the forced birthers challenge even our shaky abortion provision in the UK?
Another aspect of this story worries me greatly. The mother in this case seems to have had substance abuse issues, yet the tone of the reporting is that she should have been transformed by the miracle of pregnancy into some combination of the virgin Mary and Mrs Weasley. The cult of mothrthood apparently believes that the chance combination of sperm and egg and subsequent implantation in the wall of the uterus cures all ills, including addiction.
To say a person committed a criminal act simply by being addicted to a legal substance opens a whole host of other issues around bodily autonomy. Of course the bodily autonomy of women is never 100% certain anyway. We are expected to submit to the attention, and touching of strangers, once we step over that line marked pregnant. In the minds of far too many we become public property once we conceive. An addict is assumed to be failing morally, and as a woman, instead of being ill or addicted. Why for example has no one suggested suing the producers of the alcohol which damaged the fetus? Surely they created the substance that did so much harm? Of course big business is never as an attractive a target as a woman who has failed in that most sacred of duties, being a socially acceptable mother.