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4 February 2014updated 28 Jun 2021 4:46am

Drinking alcohol during pregnancy “could be ruled a crime” – can women be held responsible?

Pregnancy can be difficult, lonely and dangerous, and life doesn't stop just because you've conceived. Should pregnant women be forced to care for themselves in a way that others are not required to?

By glosswitch Glosswitch

When I first read the headline on Sunday, it made me furious. Drinking alcohol during pregnancy “could be ruled a crime”. I found myself thinking of Margaret Atwood’s dystopian novel The Handmaid’s Tale, of women reduced to walking wombs, of the rights of the pregnant, then those of the “pre-pregnant,” being endlessly eroded. I imagined individuals being judged on their reproductive potential alone, denied all rights for the sake of those not yet born. I thought all this, then I read the article that followed and felt I may have over-reacted.

The facts of the matter, as reported by the Telegraph, appear straightforward:

A council is planning to go to the Court of Appeal in an attempt to secure criminal injuries compensation for a six-year-old girl who was born with foetal alcohol spectrum disorder as a result of her mother’s drinking while she was in the womb.

Although not yet convicted of any crime, the mother is alleged to have “maliciously administered poison so as to endanger life or inflict grievous bodily harm”. Those working on behalf of the council claim to have strong evidence that the mother was advised of the possible impact of her behaviour and repeatedly asked to stop. Her daughter is in foster care and “very badly damaged as a consequence of foetal alcohol spectrum disorder”. Reading this, I still question whether criminalising the behaviour of the mother is helpful. Nevertheless, an uncritical acceptance that “these things happen” seems equally untenable.

I am ordinarily on the extreme side of pro-choice, thinking of pregnancy as an active process. No woman should have to a create life against her will. Even so, it strikes me that if you are creating a life, that life will belong to someone else. How can you shape someone else’s entire destiny, potentially causing decades of suffering, just because he or she begins to form inside you? To end a life before birth is one thing; to give birth to a person whose quality of life will be drastically restricted because of you seems to me quite another. It’s at this point that I hesitate and think “well, bodily autonomy is one thing, but what’s nine months? How much freedom does a pregnant woman need?” I rarely find my pro-choice convictions challenged, but in this instance I do.

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Many of the pro-choice answers to this strike me as inadequate. We could point out that there’s nothing wrong with one or two drinks over the course of a pregnancy. We could position this legal case at the far end of a cultural shift towards controlling pregnant women’s lives. We could argue that the status of pregnant women as autonomous human beings should be protected at all costs. I don’t disagree with any of these things, but they don’t seem enough. The amount of alcohol required to cause serious damage tends to be more than one or two drinks. This is not a matter of condemning women for the sake of it (for once). However opportunistic the reporting feels in light of recent attacks on abortion rights, the harm caused to this girl is real and lasting. But what should this mean for the behaviour of the mother? Our response cannot be a blanket defence but it has to be meaningful and, I would argue, supportive.

I don’t know why a woman would drink to excess during her pregnancy, knowing that it would harm her foetus. I do know why a woman would drink to excess at other times, and that being pregnant does not necessarily change one’s social and cultural environment such that self-destructive urges will disappear. Pregnancy can be difficult, lonely and dangerous. You are not always supported. In many instances, you will be at greater risk of violence. You may be frightened. You can’t become a different person simply because you need to be. Pregnancy is not magic like that. This is not offered up in mitigation of the damage done, but to question whether self-destructive behaviour that is ordinarily contained should be classed as a criminal activity once a foetus is present. Should pregnant women be forced to care for themselves in a way that others are not required to? Is the answer to expose them to greater pressure, or to offer even more support for those falling between the cracks?

In the US Bei Bei Shuai faces trial for murder with a possible sentence of 45 years to life. Her crime is to have attempted suicide with rat poison while pregnant; she survived but her baby, whom she called Angel, died two days after birth. Perhaps this case seems a million miles away from a criminal injuries compensation case in the UK, but the bluntness of the approach feels similar. There is no clear path between a desperate choice and the foetus growing inside you. There is so much flesh and blood in between. You have to decide, every day, what to do with that flesh and blood. That for one woman taking rat poison seemed the only bearable option is horrendous. To see this as an attack on a foetus rather than proof that those who are pregnant are merely people, susceptible to the same cruelties and weaknesses as everyone else, seems to me unbearably harsh.

I took SSRIs during both my pregnancies. I would rather be the kind of person who does not take SSRIs during their pregnancies, but that is what I did. We make decisions that may or may not be right, depending on what we need to make life bearable for ourselves. Criminalising people for what would, without pregnancy, be a free choice seems to me inhumane. Creating a life does not give anyone a nine-month break from the difficult task of living one.