The Guardian view on criminalising drinking in pregnancy: no cheers

The law takes some odd turns, but claiming that a woman who drinks during pregnancy might be behaving criminally towards her unborn child is reaching for the absurd. Yet that is more or less where lawyers in the court of appeal are heading by arguing that a pregnant woman’s alcoholism is equivalent to attempted manslaughter of her unborn daughter. The aim is to win a payout from the Criminal Injuries Compensation Authority, which would lift a burden from the council that pays for the child’s care now. It would also risk making any woman who drinks to excess in pregnancy a potential criminal.

The legal case rests on the argument that a foetus has an existence as a person with rights that can be balanced against its mother’s. This is an argument that, in recognition of the unique biological relationship between a mother and her foetus, has always been denied. But if it were accepted, then the local authority could claim that a mother’s drinking amounted to a criminal act against her daughter, for which the child could get compensation. There are said to be 80 similar cases in the pipeline.

Some people find this a beguiling argument. They see a young girl whose future has been severely damaged by her mother’s behaviour. She will need lifelong financial support. Her mother was warned about the risk her drinking posed to her unborn child, but she persisted. That, the argument goes, makes her conduct malicious, and her child the victim of a crime. But who would benefit from this approach? Not the child, who is entitled to support wherever it comes from. Not the mother, or other mothers, who might be deterred from seeking support for addictive behaviour. The point is not that someone should be blamed, a line of argument that would principally benefit lawyers. It is that the child needs support and – in the absence of family able to provide it – it is the state’s duty to do so.

Criminalising pregnant women for drinking would send a powerful message: but it would be out of all proportion to the evidence. While the official advice is to avoid alcohol if you are pregnant or trying to conceive, no science yet proves that the occasional drink is harmful. The link between binge drinking and birth defects is still largely a matter of hypothesis. And although there is stronger evidence that drinking heavily, every day – most of a bottle of wine, for example – can cause foetal alcohol syndrome, a group of symptoms that includes learning difficulties and distinctive facial abnormalities – it appears other factors like poor nutrition are also significant. Anyone who regularly drinks to excess has a health problem. They need help, not criminalising.

The Foetal Alcohol Spectrum Disorder Network, extrapolating from experience abroad, says that as many as 6,000 babies could be born in the UK with a degree of damage each year. Last year 252 episodes of FAS were actually recorded in England. No one thinks drinking in pregnancy is a good idea. But the answer is not to renew the old attack on women’s autonomy by criminalising their behaviour. It should be to support them through a healthy pregnancy.