I don’t see how this can work

Judges have been asked to decide whether a mother who drank half a bottle of vodka and eight cans of strong lager a day during pregnancy committed a “crime of violence” against her unborn child.

It’s a standard of English law that a mother may commit a crime of violence against her unborn child any time she likes up to 24 weeks. As long as she can get two doctors to sign off on it, not particularly a great trouble these days. And any damage done by boozing in pregnancy (Foetal Alcohol Syndrome for example) would be done long before 24 weeks.

Can’t see how it can be possible to charge someone with what another law says they’re entirely free to do.

21 thoughts on “I don’t see how this can work”

  1. Nope. The “crime of violence” needs to be performed by a licensed medical professional. A modern day Vera Drake would find herself in front of the beak sharpish, and (although it’s unlikely the CPS would press charges against the latter) the pregnant woman would be an accessory in law. A pregnant woman who imported RU486 from overseas or bought it on the black market would be in the same position.

    (the court case is a terrible idea, but that’s a different story).

  2. The standard sentence for causing serious physical harm to a child is eight months. Take away all the mitigating factors (first offence, has a child to look after, the victim wasn’t born at the time of the offence) and she’s looking at a three month suspended sentence, if found guilty. Aside from the peculiarities of this case, I do think this country is far too lenient on violent crime.

  3. Legally the foetus is not a separate person from its mother in English law. Thus this claim fails under the law as it exists. It is possible that the courts might choose to reinterpret the common law and recognise the possibility that the foetus in utero has a separate existence, but it would lead to substantial complications down the road – would we then hold people responsible for murder if a foetus is killed when someone attacks a pregnant woman – which would then take us to the point at which we decide the foetus is a separate person with rights and thus question abortion.

  4. So Much for Subtlety

    They made the drug companies pay for thalidomide.

    Hard to see how or why, when whatever damage they did was not to a person who existed at the time in a legal sense. But that is the problem with poorly thought out legal concepts.

  5. I think we’re changing the law. It will illegal to carry out that act of violence if you decide the baby is the wrong gender. The mother must now find another reason to exercise her right to choose.

  6. John B: I can see how one can construct the law so as to permit abortion while criminalising the dangerous consumption of alcohol. One could argue that the law already stands in this way, since the offence of unlawful abortion covers the unsupervised ingestion of an abortifacient. I can even see how one can defend the status quo on a pragmatic basis.

    But I agree with Tim that this case is a reminder of an important question for those who wish to defend that status quo on the basis of moral principle: If a woman is free to procure medical intervention to destroy a foetus, what moral principle would one adduce to argue that she may not be free to act independently to that end?

  7. ken: Child destruction is a rare charge, but it is levelled sometimes. It carries a maximum sentence of life, so though it is a separate charge from murder it is not treated less seriously.

  8. This case does not appear to have been thought through – it’s simply the assertion of the right of the state over the right of the individual as far as it has been reported.

    Actually, giving the foetus personhood does not do away with abortion (because the mother cannot be a slave to another person, so is not obliged to carry them for nine months unless being pregnant can be assumed to be a crime – ‘pro-life’ campaigners tend not to carry the logic of personhood through to its ultimate limit). But I doubt those behind this thought this was the case, and rather that they are simply thinking in terms of action and consequence, and nothing further.

    If they are thinking like that, as with the thalidomide example, I suspect the case here is that the actions harmed a person born later, but who is clearly a person suffering harm: in this case at least, there was reason to expect this to be the case. So I can see a logical position that if you are going to have a baby that you can be responsible for the damage your actions at the time cause to the future person (or in this case the costs of care I suspect, as this is a council). After all, if someone left a bomb set to go off a year later and it killed a two-month old child, they should not be allowed to escape charges because the child was not born at the time of their actions. Whether duty of care over those not yet born trumps personal freedom of someone who is cearly born and therefore whose rights are not hypothetical is however is a moot point.

  9. Ken

    What Philip said. The Infant Life (Preservation) Act 1929 is still in force.

    As we know, the Abortion Act didn’t legalise abortion but gave an absolute defence to any charge under the 1929 Act.

  10. @SMFS

    ‘They made the drug companies pay for thalidomide.’

    Not in court, they didn’t. UK thalidomide victims have never won a court case. They were compensated (where they were compensated) by Distillers/Diageo (effectively a PR exercise) and the government.

    The US authorities never allowed its use, whereas our govt ignored warnings from the WHO. Thus the govt has dished out some cash.

  11. Slater and Gordon are currently trying to get a compo case before the courts and will be watching this with interest. And, eventually, I think, disappointment.

    It is (to me, not for any personal reason, though I knew a boy with thalidomide deformity at school, and then a very pretty blonde who only had one hand when I was eighteen) a very interesting question, as to whether you owe the unborn child any duty of care.

    That’s the sense in which Tim is right – they can’t on policy grounds say we do, or else abortion is (logically) finished.

    [I chose between this and another interesting question – who in law owns a dead body – for my dissertation. Went for the dead body /Boring self-indulgence]

  12. @ Interested
    Firstly the German government, the relevant authority, had approved Thalidomide. Secondly, it has been reported that the reason why the US FDA didn’t was pure luck and due to its incompetence rather than its competence – it took so long over processing the application that so many cases appeared in Europe before it had issued a permit that the scandal broke and the FDA claimed credit for failing to authorise its use. Thirdly Distillers never sold a single dose of thalidomide. They bought the company from BP after it stopped selling the stuff before it got sued.

  13. @john77 the German govt were not the relevant authority for the UK.

    Re Distilkers I didn’t say they did I said it was a PR thing. They could have adopted the position ‘We bought the company to get richer you guys with no arms see ya’ but I think that would have been a commercial mistake and do evidently did they.

    I don’t know the truth behind the FDA.

  14. So Much for Subtlety

    Watchman – “This case does not appear to have been thought through – it’s simply the assertion of the right of the state over the right of the individual as far as it has been reported.”

    Actually it is more likely to be another attempt by the middle class “servants” of the state to try to force everyone else to behave in a middle class way. She should be drinking free range freshly-pressed guava juice.

    “Actually, giving the foetus personhood does not do away with abortion (because the mother cannot be a slave to another person, so is not obliged to carry them for nine months unless being pregnant can be assumed to be a crime – ‘pro-life’ campaigners tend not to carry the logic of personhood through to its ultimate limit).”

    To say someone is a slave to their basic biology is so nuts I can only assume Ayn Rand is somewhere not far off. A mother is obliged to carry a baby to term, more or less. Not by the State but by God or the basic truth of her biology. Whichever you prefer. Banning abortion simply prevents someone else performing a positive act – sticking a sharp metal object into said foetus’ brain for instance. It does not make a woman become pregnant. Her, in the main, free choices do that. It does not make her become a slave to the baby any more than she is a slave to the need to sleep.

    “So I can see a logical position that if you are going to have a baby that you can be responsible for the damage your actions at the time cause to the future person (or in this case the costs of care I suspect, as this is a council).”

    If you’re going to have a baby? What if someone does not know at the time? And aren’t you making them a slave to this future person?

    “After all, if someone left a bomb set to go off a year later and it killed a two-month old child, they should not be allowed to escape charges because the child was not born at the time of their actions.”

    I agree but that is depraved indifference or something. It doesn’t matter who they killed, or even if they intended to kill no one. They should know that planting bombs is inherently dangerous.

    “Whether duty of care over those not yet born trumps personal freedom of someone who is cearly born and therefore whose rights are not hypothetical is however is a moot point.”

    No it is not. It is the core of the issue. Although it is not a question of personal freedom for the mother. It is a question of whether doctors are allowed to kill a foetus.

  15. The thing that gets me is that suddenly we find “personal liberty” arguments being dusted off, when we live in a society where, if I want to sit in a pub where people are smoking I can’t, or want to drive without wearing a seatbelt, I can’t etc. Apparently as a sentient individual of apparently sound mind, I cannot risk injury to myself, and yet suddenly it’s “personal liberty” when a woman wants to risk serious harm to her baby.

    I do not want women controlled in this manner. It would indeed set a terrible precedent. But, we live in a society where such precedents were set a very long time ago, and with enthusiastic support from the same Progressives who discover “personal liberty” whenever it’s a “(pregnant) woman’s right to choose” and immediately forget it again in just about any other context. Will the same people defend the right to smoke in the presence of children? I doubt it very much.

  16. Doing something that makes a foetus develop into an injured child is morally equivalent to injuring a child at the moment of its birth.

    Doing something that makes a foetus developing in one’s body not develop into a child is morally equivalent to taking steps to avoid conceiving in the first place.

    That’s the difference. Foetuses are not persons at an early stage of development. They have never had the capacity for thought.

  17. SMFS,

    Actually it is more likely to be another attempt by the middle class “servants” of the state to try to force everyone else to behave in a middle class way. She should be drinking free range freshly-pressed guava juice.

    Wouldn’t disagree with that really, but I tend to presume that the stated reason for actions (amongst themselves) that such people take are not going to be ‘they are not like us’, but rather some way of dressing that up. Collectivists of all types seem to believe that the lifestyle to be led is ideally their own.

    To say someone is a slave to their basic biology is so nuts I can only assume Ayn Rand is somewhere not far off. A mother is obliged to carry a baby to term, more or less. Not by the State but by God or the basic truth of her biology. Whichever you prefer. Banning abortion simply prevents someone else performing a positive act – sticking a sharp metal object into said foetus’ brain for instance. It does not make a woman become pregnant. Her, in the main, free choices do that. It does not make her become a slave to the baby any more than she is a slave to the need to sleep.

    If you want to bring God into this, I think the argument has already gone wrong (God has never told me that a woman has to carry to term, and has provided the means to ensure this is not the case – I assume if he or she felt that strongly he or she (sorry, doing that to wind people up; can never resist) would let me know in some way that I could understand, not through the writings of a human being). If you want to insist that God’s word is important, I could start a religion that considers all babies have to aborted (or resurrect a Christian cult that St Augustine encountered perhaps) – that would undermine that argument, as no religion can be proven to be more accurate than another, so any argument based in God is actually an argument based on personal belief or scripture, neither of which stand up in the view of people like me who work on principles.

    As for the biological argument, I know women who are alive after abortions, so clearly biology allows for abortions to happen. Indeed, in the form of miscarriages etc it can naturally produce the same effect.

    The thing with your free choice to become pregnant (or to have sex anyway – you seem to be ignoring failures of contraception otherwise) argument is also that it seems to ignore that free choice automatically allows you to change your mind. There may be a penalty clause incurred (such as an unpleasant operation and the costs involved perhaps) but nobody is bound by their choices – just the consequences. You may argue a consequence of sex is nine months pregnancy, which is fair enough – but that is only one possible consequence, and you are by insisting on this particular consequence limiting free choice. How is that different from telling someone not to drink when pregnant? It is a form of centralisation, based on assuming your worldview is correct but using a different worldview from those bringing this case. Personally I believe my worldview is correct, but don’t want to impose it on others and therefore respect freedom of choice.

    But I fear all of this misunderstands my basic position. My point was that if we are adjudging a foetus as someone that can be harmed by your actions as the mother (not those of another) then it has to be a separate legal personage to yourself. If so, your responsibilities to this personage can be abandoned even if this causes indirect harm (to deny this, you would have to argue a parent giving up a child to care can only do so if it can be proved the care system is not likely to harm the child). In the same way as Ed Milliband is not responsible for the begger he enrichened with (seventy?)two pence, just because he happened to support her, why is a person responsible for another just because they happen to have conceived them.

    If you’re going to have a baby? What if someone does not know at the time? And aren’t you making them a slave to this future person?

    “After all, if someone left a bomb set to go off a year later and it killed a two-month old child, they should not be allowed to escape charges because the child was not born at the time of their actions.”

    I agree but that is depraved indifference or something. It doesn’t matter who they killed, or even if they intended to kill no one. They should know that planting bombs is inherently dangerous.

    This was the bit of my argument I was least sure about – I now see I confused outside actions and the actions of the individual a bit. But if you are determined to keep a child and your actions cause that child expenses at a later date, there is a case you are liable towards the person your actions harmed. Now this is where I expect you to point out that abortion is harm, which is true, but as the harm is not to a future person (as the person will not exist) then there is no-one liable to compensation, so this is different.

    No it is not. It is the core of the issue. Although it is not a question of personal freedom for the mother. It is a question of whether doctors are allowed to kill a foetus.

    The issue here was not the legality of abortion (something that is clearly legal and moral to me, but not to you – one of the joys of free will is that we can disagree about this). It is the harm to a person who will be born. I doubt you will agree with my views that abortion is different (although good luck bringing the same case for an aborted foetus as it has no legal personality), but the basic logical issue of this case is whether your actions (presumably knowingly undertaken) can be held against you by someone harmed by those actions before they were born. Strangely, under the logic of common law and free will, I would have to say yes. Although I still don’t like the tenor of this case.

  18. So Much for Subtlety

    Francis – “Doing something that makes a foetus develop into an injured child is morally equivalent to injuring a child at the moment of its birth.”

    I am not sure that is true. In what way is it true? The foetus is not a person by current norms. It may or may not live to become a foetus. You can’t be sure of the certain consequences of your actions, only the probabilities.

    “Doing something that makes a foetus developing in one’s body not develop into a child is morally equivalent to taking steps to avoid conceiving in the first place. That’s the difference. Foetuses are not persons at an early stage of development. They have never had the capacity for thought.”

    You choose to define them as non-persons. That does not make them non-persons. That is just your way of counting angels dancing on the head of your personal pin. How do you know what capacity they do or do not have? Why would it matter?

    This is just personal preference dressed as morality.

  19. So Much for Subtlety

    Watchman – “Collectivists of all types seem to believe that the lifestyle to be led is ideally their own.”

    Although in this case I think we can agree that a middle class lifestyle is observably better than drinking enough to cause brain damage to your unborn child.

    “If you want to bring God into this, I think the argument has already gone wrong (God has never told me that a woman has to carry to term, and has provided the means to ensure this is not the case – I assume if he or she felt that strongly he or she (sorry, doing that to wind people up; can never resist) would let me know in some way that I could understand, not through the writings of a human being).”

    I think that most people would agree God has let us know it is wrong. Our instinctive response to abortion is to say it is gross. That is why even supporters like Clinton say things like Safe, Legal and Rare. Would you continue to support abortion if the foetus gave out a small noise such as, say, what you get when you lightly kick a small puppy?

    But let us keep God out of it by all means.

    “If you want to insist that God’s word is important, I could start a religion that considers all babies have to aborted (or resurrect a Christian cult that St Augustine encountered perhaps) – that would undermine that argument, as no religion can be proven to be more accurate than another, so any argument based in God is actually an argument based on personal belief or scripture, neither of which stand up in the view of people like me who work on principles.”

    Feel free to start such a religion. Like the Shakers you may survive a while. I am not sure that one religion cannot be proven to be more or less true than another. We can certainly say that Christianity is working out for us a whole lot better than Islam is for the Muslims or Hinduism is for a lot of Indians and so we should stick with what works. We can also say no major religion is particularly keen on abortion. It seems to be fairly universal.

    It is self-congratulatory crap to say you work on principle while everyone was is a backward looking retard who works from scripture. What you mean is that your world view is based on assumptions every bit as irrational that you do not care to examine and so pretend do not exist.

    “As for the biological argument, I know women who are alive after abortions, so clearly biology allows for abortions to happen. Indeed, in the form of miscarriages etc it can naturally produce the same effect.”

    Well no. That is not what I meant. Murder and rape can happen but they do not happen by themselves. Without someone making a positive choice to do something wrong. In the same way, pregnancy usually results in birth. Like dropping a stone into a pond. The end is presumed from the beginning. We can interrupt that process, but the fact that we can interrupt it does not mean the stone is a slave to gravity.

    “The thing with your free choice to become pregnant (or to have sex anyway – you seem to be ignoring failures of contraception otherwise) argument is also that it seems to ignore that free choice automatically allows you to change your mind.”

    Again you do not seem to have understood my argument. But by all means, let’s consider changing your mind. Does that allow a man to escape Child Support? Does it allow a man to escape the moral obligation to his child? Does it allow a rapist to go free if he says he changed his mind and does not want to rape any more? Some actions have consequences and we all have to live with them. We are not slaves to those consequences. Those consequences are the logical and natural biological result of our actions.

    “You may argue a consequence of sex is nine months pregnancy, which is fair enough”

    I do not.

    “you are by insisting on this particular consequence limiting free choice.”

    I am not. Although that is what we do, in fact, to the male partner in this process. I was trying to make an objection to that word slavery. Which is an artificial and man-made restriction on someone’s freedom. Unlike, say, dying. Which is tragic but it is not slavery as it is a natural and well known consequence of being alive.

    “How is that different from telling someone not to drink when pregnant?”

    I think that girls ought to be told not to drink when pregnant. Who would argue otherwise? Whether it is sensible for the state to try to force them to stop is another matter. But in extreme circumstances, why not? The problem is saying she can kill it but she can’t cripple it.

    “Personally I believe my worldview is correct, but don’t want to impose it on others and therefore respect freedom of choice.”

    Then you would be the only supporter of abortion in the world to do so. Where do you stand on gay marriage?

    “If so, your responsibilities to this personage can be abandoned even if this causes indirect harm”

    But sticking a sharp metal objection into someone’s brain is not indirect. That is the point. The mother could abandon the baby at birth. But it is harder for her to say that she does not care when she is actually pregnant.

    “why is a person responsible for another just because they happen to have conceived them.”

    Because there is a very direct biological link. That child is utterly dependent on that one – and only that one – adult. Miliband could give money to someone else, and Cameron could toss some coins that beggar’s way. The beggar is not dependent on one person. If a woman had a father in decline so he could not get out of bed, and she chose to ignore him, go out on the town, and leave him to die in his own filth, I think we all would have something to say about her moral choices.

    “Now this is where I expect you to point out that abortion is harm, which is true, but as the harm is not to a future person (as the person will not exist) then there is no-one liable to compensation, so this is different.”

    So Swiss banks who kept all that Jewish gold, allegedly, are in the clear because the harm done was to people long dead? No one left to compensate if they all die?

    “It is the harm to a person who will be born.”

    Who may be born.

    “but the basic logical issue of this case is whether your actions (presumably knowingly undertaken) can be held against you by someone harmed by those actions before they were born.”

    The problem is the utter lack of logic – you can’t harm someone who will later complain but if you kill them so they are not in a position to ever complain, it is fine? We need to stick to one or other position. Either it is a person and so all harm is wrong or it is not.

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