An unprecedented court hearing to decide on the right of a child whose mother drank alcohol during pregnancy to receive compensation could pave the way to the criminalisation of pregnant women's behaviour, according to legal papers lodged with the judge.
The British Pregnancy Advisory Service and legal charity Birthrights have applied to address the court on the case. They believe the ruling could undermine women's freedom to make decisions for themselves while pregnant.
A local authority in the north-west of England, which cannot be named for legal reasons, is seeking to demonstrate that the mother of a six-year-old girl born with foetal alcohol syndrome committed a crime under the Offences Against the Persons Act 1861 by drinking during her pregnancy. In a legal submission seen by the Observer, the two organisations claim that if the court agrees with the council, "it would set a precedent that could be used in criminal prosecutions of mothers whose babies are born with foetal alcohol spectrum disorder".
The document adds: "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."
An earlier tribunal hearing of the same test case ruled that the child was the victim of a crime. 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". The court of appeal will hear the case later this year.
The child's mother, who drank "grossly excessive quantities of alcohol" during her pregnancy, was never convicted of any offence. Foetal alcohol syndrome is a complex condition which includes retarded growth, facial abnormalities and intellectual impairment. Children who display certain psychological aspects of the syndrome – including learning difficulties and an inability to connect emotionally with their peers – but do not have the physical manifestations, are said to suffer from foetal alcohol spectrum disorder.
Most babies of women who abuse alcohol are not affected: other factors, including nutritional status, genetic makeup of mother and foetus, age and general health, are believed to play a role. The number of cases of foetal alcohol syndrome has tripled since records were first kept 16 years ago. There were 252 diagnoses of the syndrome in England in 2012-13. Experts say that the figures suggest an improved ability to diagnose the condition but also a failure to deal with alcohol abuse.
In a joint statement, Ann Furedi, chief executive of the British Pregnancy Advisory Service, which gives advice to women with unplanned pregnancies, and Rebecca Schiller, co-chair of Birthrights, which offers legal help, said criminalising pregnant women was not the solution. "Viewing these cases as potentially criminal offences will do nothing for the health of women or their babies … We should take very seriously any legal developments which call into question the autonomy of pregnant women and right to make their own decisions."
The Department of Health advises that alcohol is to be avoided in pregnancy, while the independent National Institute for Health and Care Excellence advises women to avoid alcohol in the first three months of pregnancy because of the risk of a miscarriage.