Fetal alcohol spectrum disorder (FASD) is an umbrella term used to describe a profound constellation of disabilities that may result when a pregnant woman consumes teratogenic ethanol (alcohol), causing the developing fetus to be neurodevelopmentally impaired (Douds et al. 2012). The use of the term ‘fetus’ (Latin) generally implies that a mammalian embryo¹ has developed to the point of being recognizable as belonging to its own species and this is usually taken to be the ninth week after fertilization. A fetus is also characterized by the presence of all the major body organs though they will not yet be fully developed and functional and may not all be situated in their final anatomical location.

The developing human organism is particularly sensitive to the conditions in the uterine environment. Environmental influences begin to shape children from the moment of conception. As the fertilized egg divides, creating zygote, embryo and fetus, the infant-to-be derives far more from its mother than simple nutrition. It also receives a veritable cocktail of hormones and other chemicals that can have a profound, lifelong impact on its mental and physical growth. As with any drug, there is a risk that alcohol ingested by a pregnant woman will cross the placenta into the bloodstream of her unborn child. The effects of such transmission on the fetus can be profound given alcohol’s teratogenic effects. As various researchers have detailed, prenatal exposure to alcohol affects many crucial biochemical and cellular components of fetal development (Michaelis and Michaelis 1994). Cellular events that may be disrupted by alcohol include cell division and proliferation, cell growth and differentiation and the migration of maturing cells within the embryo. These changes can all have tragic results (Jacobson and Jacobson 1994).

However, it has not been established what level of prenatal alcohol exposure can cause disabilities (Abel 2006) although it is clear that both chronic alcohol use and intermittent binge drinking during pregnancy can cause FASD (Burd et al. 2010). Moreover, there is no consensus within the clinical community on the precise diagnostic criteria for FASD. The more narrowly defined and full-blown disorder termed fetal alcohol syndrome (FAS) is recognized in the Diagnostics and Statistical Manual of Mental Health Disorders (DSMIV ²; Astley et al. 2004), but the broader spectrum of related disorders, encompassed by the term FASD are subject to interpretation, depending on which diagnostic criteria clinicians use (Chudley et al. 2005). Because this spectrum often includes conditions that can be diagnosed independently of FASD, the term eludes clinical diagnostic definition (Boland et al. 2002; Stratton et al. 1996).

The disorder causes a range of physical and mental health problems including facial abnormalities, behavioural problems, hearing and ear problems, learning disabilities and growth issues. Exposure can cause permanent brain alterations leading to lifetime disability neurologically and psychologically. The disorder is irreversible, but in certain cases its effects can be reduced (Ministry of Justice, New Zealand 2011). Mukerjee estimates that between 1 and 3 per cent of the United Kingdom (UK) population is affected by FASD (Daily Mail, UK, 2014). It is also stated that up to 7,000 children a year in Britain have been revealed to be affected by alcohol exposure in the womb (Drinkaware 2014). According to the Centres for Disease Control and Prevention, FASD is the leading cause of preventable birth defects and developmental disabilities worldwide (CDC 2012).

Furthermore, FASD is significantly correlated with criminal justice involvement (Koren et al. 2004; Streissguth et al. 2004, Fast and Conry 2004). The effects of FASD plague people throughout their lives, causing them to be at increased risk for delinquent and criminal behaviour and for contact with criminal justice systems (Sayal et al. 2009; Boland et al. 2002). Persons with FASD are at increased risk for antisocial behaviour from birth by virtue of their in utero exposure to alcohol (Bailey et al. 2004; Roebuck et al. 1999) and they frequently suffer from a broad constellation of secondary disabilities (Howell et al. 2006; Carmichael Olson et al. 1997). In severe cases, sufferers of FASD exhibit profound antisocial, delinquent or aggressive behaviours and they lack the ability to foresee the consequences of their actions (Streissguth et al. 2004).

Nonetheless, FASD is a recognized medical disability which implicates sufferers’ legal rights (Douglas 2010; Moore and Greene 2004) ranging from their rights against self-incrimination and their right to effective assistance of counsel to their right to introduce mental health in mitigation at sentencing. Persons suffering from FASD and related secondary disabilities often do not have the cognitive ability to form criminal intent, to confess or testify meaningfully or to benefit from traditional sentencing structures (SAMHSA 2006). Research demonstrates that many individuals with FASD are highly suggestible and easily led (Salmon 2007).

Fast and Conry (2009) provide a useful mnemonic device “ALARM” to summarize the myriad disorders frequently arising from FASD. Poor Adaptive functioning; Language deficits; Attention problems; deficiencies in Reasoning skills and poor Memory. Each of these five disabilities has profound implications for criminal justice practitioners and criminal defendants. However, in light of the confusion within the clinical community (which is still in evidence today), it is not surprising that there is no consensus among federal courts on the meaning or significance of an FASD diagnosis (SAMHSA 2006).

FASD is not a new phenomenon. Concern about gestational harm from alcohol arose in North America some 40 years ago when researchers found a group of children with an apparent unique phenotype, coupled with a high dose of prenatal exposure to ethanol. Over this period of time much has been learned about the complexity, seriousness and frequency of alcohol on brain development of the fetus (Salmon 2007).

Whilst some researchers have estimated thresholds such as seven standard drinks per week for neurobehavioural deficits (Jacobson and Jacobson 1994), the point has been well made by Hanson (1981) that no safe level of alcohol intake during pregnancy has been established. This comment holds good today. For instance, a single episode of binge drinking by an expectant mother can result in her child being born with alcohol-related neurodevelopmental disorder (ARND) (Salmon 2007). Schmidt et al’s (1990) research indicated that between one-third and one-half of women drink during pregnancy with the typical profile of the pregnant drinker being single, older and of a higher socio-economic status.

Current guidelines in many countries now state that expectant mothers should avoid alcohol, but that if they do choose to drink, then they should limit their consumption to one or two units a week. Moreover, in New Zealand (NZ), the government advises zero intake of alcohol during pregnancy and when planning to become pregnant (Salmon 2007).

A British study in claiming that pregnant women can drink up to one glass of wine a day without harming their child’s neurodevelopment, is sending out mixed messages to women in the community. The study by University of Bristol researchers, which recruited 7,000 10 year-olds, argues that higher total alcohol consumption before and after pregnancy was associated with better performance by the children. The children underwent a 20 minute assessment, testing dynamic balance by walking on a beam and static balance, including standing on one leg with their eyes both open and closed. Seventy per cent of the mothers—those whose alcohol consumption had been monitored at 18 weeks and again at birth—had drunk no alcohol whilst pregnant. One in four mothers had consumed small amounts of alcohol: about one glass a week or moderate amounts anywhere from three to seven glasses per week. About one in 20 mothers drank more and one in seven drank four or more glasses at one point (FASD-Canadian-Link 2013).

Another British study by Yvonne Kelly et al. at University College, London in 2008 argued that light drinking in pregnancy may be beneficial for an unborn child. She further stated that the research had found light drinking by pregnant mothers did not increase the risk of behavioural difficulties or cognitive deficits (Belfast Telegraph 2008). The study focused on 12,495 children up to three years of age and ‘light drinking’ was defined as anyone who had ‘no more than one or two drinks a week or no more than two drinks on an occasion.’ This broad categorization includes patterns of drinking that have been shown to affect fetal brain development in laboratory research studies (Zhou 2008).

Emily Oster (2013) at the University of Chicago advocated drinking whilst pregnant e.g. a glass of wine per day, stating that it was safe. She also suggested that the available evidence does not support the recommendation to abstain from alcohol use during pregnancy. Consequently, Bristol University researchers, Kelly and Oster will likely add more confusion surrounding drinking alcohol when pregnant and contradict official recommendations from many government agencies to avoid alcohol altogether when expecting a child (FASD-Canadian-Link 2013).

Added to this, legal and medical professionals worldwide have become increasingly concerned about the number of children born with alcohol-related brain disorders (Ministry of Justice, NZ 2011). Advocates and researchers maintain that FASD diagnoses are critical at every stage of the criminal justice process (Streissguth et al. 2004; Steinhausen et al. 1993). Furthermore, it has been documented that mothers-to-be who harm their unborn child by drinking alcohol could be committing a criminal act, lawyers argue (Daily Telegraph, UK 2014).

Certainly there are internationally accepted ethical norms about human life. It is an acknowledged and fundamental principle that everyone has the right to life, freedom and personal security and that the right to life is protected by the law. This is what the United Nations (UN) Declaration of Human Rights of 1948 and the European Convention about Human Rights 1950 declare. Another ethical norm is the 1959 UN Declaration of the Child’s Rights, where it is stated that “both the child and its mother shall be given special protection and special care…before and after birth” [including protection against harmful influence e.g. alcohol, narcotics] (Per Westman 1993, p. 2).

Moreover, for more than a decade, law enforcement personnel, judges and elected officials in the United States (US) have sought to punish women for their actions during pregnancy that may affect the fetuses they are carrying (Gallagher 1987). Women who are having children despite substance abuse problems have been a particular target, finding themselves prosecuted for such non-existent crimes as ‘fetal abuse’ and delivery of drugs (including alcohol) through the umbilical cord. In addition, pregnant women are being civilly committed or jailed and new mothers are losing custody of their children even when they would be capable parents. Certainly research by Salmon (2007) argues that some alcohol-abusing but capable biological mothers do have their children with FASD taken from them and as a result, are distraught.

Some proponents of these efforts are motivated by the misguided belief that they are “promoting fetal health and protecting children” (Pollitt 1990 cited Hoffman 1990, p. 11). Others hope to gain legal recognition of fetal rights—the premise that a fetus has separate interests that are equal to or greater than those of a pregnant woman (Hoffman 1995). Recognition of such rights would require women to subordinate their lives and health—including decisions about reproduction, medical care and employment—to the fetus. Some advocates of fetal rights have argued that children should be able to sue their mothers for prenatal injuries. Others would argue that the pregnant addict and the fetus seem to have competing interests, although this is not the case (Pollitt 1990). Because a pregnant woman abuses herself as well as her fetus when she consumes alcohol, the woman and the fetus have a joint interest—ending the abuse—rather than competing interests (Schroedel 2000).

It is the conflicts between human fetuses and their mothers that soon became and remain today the focus of the most heated debates in legal periodicals, popular media, state legislatures and courts.³ On this note, it has recently been argued in the UK that women who harm their unborn babies by drinking alcohol during pregnancy could now be found guilty of a criminal offence. Indeed, as far as I am aware, there has never been a prosecution of a mother in England for poisoning her fetus (unless it led to the fetus’s death, in which case, this would constitute an illegal abortion). Nonetheless, a new legal test case claims that a six-year old girl who suffered brain damage owing to in utero alcohol exposure is the victim of a crime. It believes that her mother ‘poisoned’ her by continuing to drink whilst pregnant—despite being warned of the risks including damaging the child who was diagnosed with FASD at birth when she displayed signs of intrauterine growth retardation, small stature and particular facial features. There was a failure to thrive and there was a risk of neurodevelopmental, intellectual and behavioural difficulties, organ dysfunction and other problems (CICA 2013).

The case was brought before the Court of Appeal by a council in North-West England and the girl awarded 500,000 GBP in criminal injuries compensation for severe brain damage suffered in the womb as a result of her mother drinking (SAF Ocean Indien 2014). However, the Criminal Injuries Compensation Authority, which provides financial compensation to the victims of crime has appealed against this decision claiming that the child was a fetus and therefore, ‘not a person’ at the time. The only relevant offence that it has been suggested was committed by the mother and of which the child could have been a victim for the purposes of this present case is that of maliciously administering poison so as to endanger life or inflict grievous bodily harm contrary to Sect. 23 of the Offences Against the Person Act 1861 (UK) which states as follows:

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, shall be guilty of felony and being convicted thereof shall be liable…to be kept in penal servitude for any term not exceeding ten years (Social Security and Child Support Commissioners 2013).

Nonetheless, the upper tribunal found that the child did not constitute a victim of violence because at the relevant time the child was ‘not a person’ in legal terms, but a fetus. As such, no crime had actually been committed to underpin a compensation claim (Priaulx 2015).

In the interim, media interest focused on concerns that any successful appeal could lead to criminalisation of mothers for fetal injuries or impairments resulting from maternal behaviours during pregnancy (Larcher and Brierley 2014). It was thought that the case could potentially have far-reaching implications.

Similarly, the Northern Territory (NT) Government of Australia in an attempt to reduce the number of children born with FASD, is also considering legislation that could see pregnant women prosecuted or restrained if they drink dangerously because they are infringing on the rights of the unborn child. Many children in Australia suffer from severe disabilities caused by things done before they were born, but most are not entitled to compensation for the harm they suffered in the womb and there is no law to prevent prenatal injuries. However, the NT Government is currently exploring the antenatal rights of the unborn child and it could mean the introduction of laws to prevent women from drinking through pregnancy (ABC Net 2014). This brings into question a number of human rights. Furthermore, in New South Wales, law-makers are considering giving legal status to the fetus. In fact, ‘Zoe’s Law’ has passed the lower house and is about to be debated in the upper house. The proposed legislation is an example of a fetal personhood law, whereby the fetus is considered to be a person and harming it leads to a criminal sentence (Savulescu and de Crespigny 2014).

Certainly, in NZ [whose law is inherited from the English legal system] (Ministry of Justice, NZ 2015), the tragic legacy of fetal exposure to alcohol threatens the core notion of maternal autonomy and raises the issue of to what extent (if any) the state may seek to control maternal behaviour in order to protect the unborn child (Webb 2000).

This paper now discusses the implications thus raised and who is responsible for same.

What do we mean when we say that a fetus is a ‘human being’? When people talk about ‘human life’ they may mean:

However, they may mean something very different:

Conversely, the time at which a fetus gets the right to life because it has achieved the relevant list of characteristics can vary from the moment of conception to the time of birth. In fact, for some philosophers, very young babies do not really qualify as having earned the right to life by possessing the right characteristics. Fortunately, for young children these philosophers concede that young babies do have the right to life as a result of tradition and law instead. So, it may not matter in terms of pure moral philosophy, since there are cases when individuals would agree that even if the fetus is a person, the consumption of alcohol by a pregnant woman may be morally justified (BBC, UK 2014). This idea is indeed contrary to the view of the Criminal Injuries Compensation Authority in North-West England.

Other people refer to the fetus as having the right to life because it is a ‘potential human being’. The ‘potential human being’ argument gives the right to life to the unborn from the very earliest stage of development—the moment when the egg is fertilised. This argument renders irrelevant any concerns about what sort of being the fetus is at any particular stage of its development. However, there is no doubt that a fertilised egg is a potential human being since, if the pregnancy runs its full course, it will be born as a human baby; the question is whether being a potential human being gives the fetus any rights? Furthermore and as a general rule, it is not felt that potential properties are the same as actual properties or that potential rights are the same as actual rights. Children are potential adults, but that does not give them the same rights or obligations as adults (BBC, UK 2014).

Generally, society does differentiate between actual and potential beings—distinguishing between their rights also. Many of the rights of a potential person are only potential rights—they only become actual rights when the person becomes an actual person. For example, a 10 year old in the UK is a potential voter and has the potential right to vote, but he/she does not get the actual right to vote until he/she reaches his/her 18th birthday and becomes eligible to vote. One of the strongest arguments for giving the full rights of person to the fetus because it is a potential person flows from the status of a new born baby. At birth a new born baby possesses so few of the characteristics required for moral personhood that its right to life cannot be based on it being a ‘moral person’. Nonetheless, people generally do accept that it has a right to life—even those who follow the ‘moral person’ line of thought. There are others however, who do not accept that the newborn has a right to life: some ethicists argue that abortion and infanticide are both morally permissible because ‘moral personhood’ and the right to life are acquired only after birth, but this is an uncommon position. This right to life seems to flow from the potential that the newborn has to become a ‘moral person’ and this in turn seems to support the argument that a potential ‘moral person’ has the right to life (BBC, UK 2014).

Interestingly, Dietrich v. Northampton established an important precedent that defined the parameters of fetal personhood tort cases for more than sixty years. In Dietrich a woman tried to hold the city of Northampton, Massachusetts, liable for the miscarriage of her fetus after she fell as a result of a defect in a public highway. The court ruled that the unborn child could not sustain life outside the mother and therefore, did not have the legal right to action (Schroedel 2000).

Of note, is that the heightened awareness in medicine and ethics has led doctors to perceive the fetus as an individual patient with needs distinct from those of its mother. The implications of these developments for both the legal and medical professions are profound… (Bennett 1991).

The relationship between a pregnant woman and her fetus is unlike any other in law, medicine or ethics. Within the same body, there exists one person and one potential person with both similar and separate interests and for the fetus, developing rights. This set of circumstances gives mother and fetus a biological, psychological, moral and legal connection that is unique (Post 1996).

From a theoretical standpoint, Faludi (1991) argues that by heavily idealising the mother’s role in its backwards-looking fantasy of the nuclear family, this backlash has often served to pit mother against fetus in an adversarial relationship. When measured against the ideologically constructed image of the perfect mother, any woman giving birth to an alcohol-affected baby is thus vulnerable to the Western tendency of mother-blaming (Caplan 1989).