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It's not 'bad mothers' we should be afraid of ... bad law will do more damage

You know the cliche "Hard cases make bad law"? The case of a woman being sued by a local authority in the UK for drinking and taking drugs when she was pregnant is a really hard case.

She was repeatedly warned her behaviour would damage her baby and sure enough, it did. The baby was born with Foetal Alcohol Syndrome and has several disabilities.

Now aged six, she's in foster care and will need a lifetime of medical support.

The local authority says the mother should pay for the care. Since, as far as we know, the mother is deprived and doesn't have much money, it feels like the council is making a point.

The point being that the mother should pay for the consequences of her behaviour. If she had fed her baby alcohol from a bottle the child would have been taken away and she'd have been jailed.

Why should it be any different when the baby is still in the womb?

But if this case sets the precedent that a woman can be held accountable for damage done to her baby in utero, that would be a really, really bad law.

laws

The main reason is another cliche - "the thin end of the wedge". Laws that start out to mean one thing quickly end up meaning another.

Take Alabama. The US state passed a "chemical-endangerment law" that prohibits a "responsible person" from "exposing a child to an environment in which he or she knowingly, recklessly or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance or drug paraphernalia".

The law was passed to try to protect children from crystal meth labs. But very quickly afterwards lawyers broadened the definition of "environment" to "womb" and "child" to mean "foetus".

In 2006, Tiffany Hitson was charged with chemical endangerment after she gave birth to a baby who tested positive for cocaine and marijuana but was otherwise healthy.

When that prosecution was successful other counties followed suit, making Alabama the national capital for prosecuting women on behalf of their newborn children.

"So what?" you might say? Well, two points.

First, Tiffany was an addict. She needed help to control her addiction, not to be thrown in jail. And second, that baby was born healthy. Tiffany's crime was doing something that could have harmed the baby, even though it didn't.

This is the point that concerns me most.

The UK mother's drinking did harm her baby, but if lawyers can broaden laws beyond what was originally envisaged, well let's just see where they could go with the "Mother Drinking in Pregnancy is Bad" precedent.

Everybody knows that drinking any alcohol while pregnant is irresponsible. That's what doctors always say.

But that's a serious exaggeration. In the latest longitudinal studies which track children's development, there is absolutely no evidence of neurological damage when mothers drink a moderate amount in pregnancy.

When babies are born damaged it's because there's been heavy drinking, binge drinking and often, Class A drugs involved. In other words, a responsible mother who has a glass of wine in the evening or a G&T on Friday night is fine.

precedent

But doctors don't want to admit that moderation is okay and instead scaremonger that any alcohol is too much.

If a precedent is set that the UK mother can be pursued for behaviour which damaged her baby, here are three possible consequences.

First, an over eager lawyer will pursue mothers for drinking, even where babies are born healthy. Second, allegations linking disability with moderate drinking will be made and a mother will be blamed for a disability without any real proof of a link.

And finally, it won't stop at alcohol. What if you eat blue cheese or seafood? What if you're told to stop working but you're unwell and can't afford it and it affects the baby's health or weight? That's where this will go.

The compulsion to control and blame women will intensify and turn us all into criminals.


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