Guest post: Foetal Alcohol Syndrome - 'my nephew deserves better than the criminalisation of his mother'

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Right now, the Court of Appeal is deciding whether or not a council in the North-West of England can hold the mother of a six-year-old girl born with Foetal Alcohol Syndrome criminally liable under the Offences against Persons Act of 1861.

Foetal Alcohol Spectrum Disorder (FASD) is an umbrella term for a number of diagnoses that result from prenatal exposure to alcohol. This exposure can cause problems with memory, attention, speech and language and behaviour, a weakened immune system, and damage to the liver, kidneys and heart. The long-term consequences include addiction, chronic unemployment, poverty, depression, suicide, and the criminalisation of the child themselves.

It is a horrible condition. I know, because my nephew has FASD. I have seen him struggle with his physical and emotional health. He finds everyday activities difficult, and his behaviour is very challenging. It is heartbreaking, watching him trying to navigate life with intellectual and physical impairments that could have been prevented. He finds school difficult because he cannot cope with unstructured learning, such as break time. He requires a very strict routine with clear instructions and finds choices difficult. He also has physical disabilities and needs a very strict diet – another control on his life that he does not fully understand.

As an aunt, I don't want any woman to drink alcohol whilst pregnant because I worry about the consequences for their children. As a feminist, I am utterly opposed to the criminalisation of women's bodies and any attempts to limit women's reproductive freedom.

Criminalising mothers who give birth to babies with FASD would do nothing to support women, and would make accessing services even more difficult. How many women would inform their midwife of their alcohol consumption if they believe they'll end up in prison? Even if women were to approach their midwife or doctor, there aren't enough programs in place to help them. How many beds are there in rehab facilities that are appropriate for women with substance misuse issues? How many are there that cater for women with other children? I refuse to believe that criminalisation would be followed by investment in mental health services. Already, a vast number of women in prison are there as a consequence of trauma, and criminalising pregnancy would increase that number.

The most frustrating thing is that there are so many other things we could do. Research has shown us how to minimise the effects of FASD. For example, we know that access to a healthy diet has a positive impact, which is why poverty remains a major risk factor. This isn't because women living in poverty are more likely to misuse alcohol – it's because a healthy diet can minimise the effects of alcohol on a developing foetus.

We know how to prevent FASD. It requires a properly funded NHS to provide support for women with substance misuse issues. Access to a midwife and GP who understand addiction and its causes is the most important prevention method. We can't see alcoholism in isolation. Amongst women, it is frequently linked to trauma following male violence – and we need a social care network that understands the reality and consequences of this.

This is why criminalising women is not just nonsensical - it's misogynistic.

Despite the fact that our economy would be destroyed if women withdrew all their labour, society still believes that women have less economic value than men. The control of women's reproduction – from access to birth control to abortion, from prenatal care to maternity leave – is about controlling women's labour. Preventing the "bad" women – the drinkers, the drug takers – from giving birth means that they are free to do low-paying jobs, rather than depending on the welfare state. Of course, criminalising them is much easier than fixing the root of the problem by providing better health and social care, and it suits those who should be stepping up to the plate: the local council, which is refusing to take responsibility for its failure to support a vulnerable woman appropriately during her pregnancy, and our society, which is refusing to take responsibility for the harm caused by misogyny and violence against women.

The only effective way to tackle FASD is to create a culture in which women have equal value to men, where male violence is eradicated, and in which women have access to free healthcare without judgment.

I don't want any child to suffer the way my nephew suffers. I also don't want to see women imprisoned for substance misuse. If we genuinely cared about women with substance misuse issues and children born with FASD, we'd be standing on the barricades demanding better investment in social care, the NHS and education - that's where the support and intervention for pregnant women should be. They won't get this support if they're forced into the criminal justice system.

My nephew deserves better than the criminalisation of his mother. And his mother deserves better too.

"Does anyone really think that a woman being sent to prison for having a child with FAS will stop other vulnerable alcoholic women drinking and doing the same thing to their foetuses?"

Does anyone think that sending men who rape to prison will stop other rapists? Will sending murderers to prison stop other murders? Should Baby P's mother escape prison because she had a hard life and was vulnerable? What about the killers of Jamie Bulger?

Lets abandon this urge for punishment.

The way forward is more support for vulnerable women in changing their lifestyles and breaking addictions.
Until they achieve this, there needs to be more resources invested into persuading them to accept longterm contraception.

ALL disabled / SEN children deserve adequate resources and it is irrelevant how they became that way.

The care orders are presumably for the child after birth though ie for when the child is a legal person?

I assume if the authorities are aware of an alcohol or drug addicted pregnant woman, they are investigating those steps or other post-birth support regardless of whether FAS results in a specific case.

So in your Russian roulette example, an alcoholic wanting to keep her baby but not stop drinking would be at risk of a care order or other SS intervention, before any diagnosis.

So we won't punish abusers who brain damage their otherwise healthy (born) child in a fit of rage? Male and female?

You're right, Yonic, but I meant the Russian roulette in relation to whether the child would be damaged by the drinking, not the potential loss of the baby to social services care.

lougie We keep returning to a basic issue: a baby is legally recognised as a person with full human rights. A foetus is not legally a person in this country.

Except that it is, in the offenses against the persons act, which remains in full force. The Abortion Act allows the right of the mother to halt a pregnancy, over powering the right of the foetus to life, only if two doctors agree that the mother's request fulfils one of the lettered criteria.

In practice abortion is available relatively on demand because anyone who doesn't want to be pregnant can argue that their mental health would suffer if refused. That does not mean that women have full autonomy, or they wouldn't need the consent of two doctors. It also doesn't mean that the foetus doesn't have a right to life because otherwise it wouldn't be illegal to perform abortion or supply means of abortion without the consent of two doctors.

Just because the practice we see is relatively permissive does not mean that people can decide that a foetus has no right to life because they'd rather it wasn't so.

If someone said that a foetus doesn't have as much right to life as the mother has to bodily autonomy, I would agree: that's why the abortion act allows for termination in proscribed circumstances.

Lougle you ignored the part of my post which acknowledge that sane rational people who aren't addicted, are affected by the knowledge of criminal sanctions and don't drive when they might be over the limit (or even don't drink at all when they know they'll be driving later on).

The threat of sanctions does stop some people, but the question here is whether they will stop this particular group. In order to stop this particular group of people damaging their foetuses by criminalising them (a really questionable approach in terms of how effective it would actually be) we would need to impose draconian limitations on the freedom of all other women, pregnant and potentially pregnant.

It's as reasonable as imposing a rule that says men can't go out after dark unless they're monitored by the state in case they go down dark alleyways and rape women. After all, a tiny minority of men do that, so why should we trust the others not to? Safer to ensure that they're all policed effectively in order to avoid the harm a minority of them may do to a minority of women.

Does that sound reasonable, effective and proportionate?

I don't think it is the same as saying all men should be monitored after dark in case they abuse women.

There are different threads to the argument. One is the prosecution of women who cause a disability by consumption of a known toxin. The other is the proactive monitoring of pregnant women for alcohol abuse.

I haven't given an opinion on the latter. In any case we're talking about women who are drinking chronically and heavily. Not the women who decide that a glass of wine with dinner once per week is okay.

lougle you do know that there is a huge movement out there which is desperate to criminalise women who make the judgement that they are able to drink a glass of wine a week with their dinner don't you?

In some states in the USA, restaurants will actually refuse to serve a pregnant woman any wine at all with her dinner.

I think we need to bear in mind the context in which laws are made and the climate that legislation creates. Things have a momentum which people may not be expecting. Before you know it, all sorts of things not envisaged or intended by the original legislation, have become standard practice.

I don't agree with it. I can't see the problem with abstinence in pregnancy though. Everyone I know abstained (voluntarily -I accept we're talking about compulsion, which is different).

It's 9 months of your life.....I can't see the problem.

I do see that there is a huge difference between choosing to and being forced to.

Most decisions about rights are about balancing harm and risk to all parties, considering the numbers affected, then choosing the least bad option.
There are often differing views on where the balance should be.
The issue here is can we avoid FAS births without damaging the rights of millions of real live women - who vote for those who would have to pass new laws.

The restrictions on abortion certainly don't acknowledge the foetus as being anywhere near "personhood".
Othrwise, 200,000 women annually could not choose to abort a foetus, almost always one that was not endangering their lives. Women don't regard abortion trivially, but many abortions are for financial, career or lifestyle reasons.

Unauthorised killing of dogs and some other animals is illegal, also injury and torture, e.g. dogfighting. Food animals like cattle can be killed in certain circumstances not others and ther are rules about their treatment.
However, animals don't have legal "rights" as such, because they are either wild or property.

The reality right now is that parents who do things to their children that break the law are often not prosecuted.

It's illegal to physically abuse your child, it's illegal to give a child under 5 alcohol. That didn't stop my DD2 and her siblings being gotten drunk or having permanent scarring. And ultimately, after many years of thought, I don't think prosecuting would have been the right way forwards for the children. That is of course totally an individual situation dependent thing, in another case and different family, it might be 100% appropriate with not a shade of doubt. Either way, even right now it sometimes feels a bit 'random' who gets hauled before the courts and who doesn't. I don't trust that the cps/police would go after the 'right' cases if the law were altered.

But however much I think that criminalisation isn't a good thing to do in our society - and I do very much disagree with the idea - I can still understand very easily how you can feel differently when you're the one struggling with FAS day after day

To dismiss the people who are coming from a position of enormous hardship caring for kids with FAS, as whining over nothing, shows a staggering lack of understanding and empathy, and to accuse people of making it up because presumably it's easier to pretend that these difficult situations don't exist than confront it, is sheer stupidity. People who experience domestic abuse and horrendous stress and emotional difficulty on a daily basis are not 'whining' if they are angry about it, whether they are parents or partners. And it should be the easiest thing in the world to understand that if the effects of FAS are landing you in hospital having basically been battered, that that might affect how you see this situation in a totally understandable way, and extend a bit of fucking compassion and empathy. REGARDLESS of your opinion on whether criminalisation is appropriate

I drink about one glass of wine per month and would have no difficulty giving it up for the rest of my life.
However, I appreciate some women regard alcohol as essential most days.
I wish we could change the UK drink culture, but that is probably an unrealistic dream

SGB that is a really disappointing post. 'Whining'? 'Boohooing'? 'Tough shit' To people who are dealing with the reality of their children having been brain damaged? Seriously? Is your political stance on this blinkering you so much that that is acceptable to you?

I'd have a rethink if so :(

I dont think any rational, right thinking person would agree a child being severely damaged for life because some woman decided being a booze drain is more important, we arent talking about a christmas wine or sneaky shandy, i had shandy btw on an occasion , i dont want criminalisation but i think some kind of compulsory contraception needs to be in place the care system cannot cope as it is, what about adult residential care? They are already dealing with the kids of the 60s,70s and 80s where mothers drank to oblivion but had ignorance as an excuse.

I don't think addiction can be put forward as a complete excuse. If an alcoholic kills somebody in a car accident they are liable. I think women do have to take responsibility if they drink so much a child ends up damaged for life. What is the answer. Carrying on the way we are. I wonder how other countries deal with this.

There are no easy answers here. I agree that a woman has autonomy over her own body however I also can see the hideous impact of fas and how the current situation isn't right either. Just as a real example - a friend of mine adopted a few months before me. Her daughter is number 11 child - 9 of her previous siblings are in long term residential care, another sibling has been adopted. All suffer from fas with the terrible repercussions this brings to them and the people trying to care for them. Birth mum is now pregnant again with number 12 - they know this as she was recently arrested for being drunk and disorderly and social services are again looking at plans to remove the child at birth.
There are no winners in this situation - there has to be a better way than this.
And frankly, treating any parent who is living with the impact of fas as whining is very strange. You may disagree with an opinion on how we deal with it but can't you show empathy and respect for fucks sake.

Can I ask where all the posters in support of criminalising the mother stand on the babies of pregnant women suffering from stress? Studies have suggested to be developmentally detrimental to a foetus, both in brain function and physically. Are we then going to put sanctions on pregnant women in high-pressure jobs? How do we help them? Perhaps mandatory spa days would be a solution? But stress is more socially acceptable to the middle classes I guess

Or even more controversially: what about exposure to TV at a young age. This has been suggested to contribute to raised levels of ASD and ADHD. Should we penalise every parent who subjects their child to Peppa Pig?

Addiction isn't really the point here. Whatever the reason for the drinking, whether addiction or sheer bloody mindedness , our laws do not allow that the foetus is a person.

If a drunk driver hits a pregnant woman, and she survives but loses the baby, he cannot be charged with murder/manslaughter/causing death by dangerous driving etc because the foetus is not a legal person. I don't think he can be charged with foetal destruction as I think this involves a specific intent aimed at the foetus.

I really wish no babies were born with this, it's shit that they are, but there are far reaching impacts of this change.

I don't support criminalisation. However likening the effects of alcohol abuse and fas to prosecuting people watching peppa pig is insulting and minimising the issue. Can you understand how devastating that sort of remark has on parents living with this?

But even if a foetus isn't a person and has no rights it will be a baby if the mother goes on with the pregnancy. And this alcohol syndrome isn't curable and won't go away so she is doing something that will damage a baby. Maybe those women should be put under house arrest if they choose to go through with the pregnancy. I think something should be done instead of handwringing and wittering on about the rights of women. What about the rights of a person not to be born with this dreadful syndrome. Their has to be a balance.

VM, a PP has said that 95% of heavy drinkers don't produce children with FAS. Not sure where this stat is from but I've certainly read that there are lots of factors like stress that contribute as well.

The trouble is - there is no balance possible.

VM, how would you find the women who needed to be put under house arrest? And wouldn't the damage be done by the time they were found? And wouldn't they abort first - "abort or be put under house arrest" is not something we can stomach, surely?

An FAS diagnosis requires the facial features, but we also now know that which signs and symptoms of pre-natal alcohol exposure a child has, is very dependent on the timing of drinking, since various body systems develop at different points in the pregnancy. Also, alcohol clearly affects different foetuses in different ways anyway, for unknown reasons. And higher level functions like social skills etc, require more than one part of the brain to be functioning well, so deficits here are more noticeable and definitely more common. Consequently, many more children have FASD than have FAS - but it's harder to diagnose than FAS because of the lack of very specific signs. So whilst we can say how common FAS is, it's very difficult to judge how common FASD is, or how likely a pregnant woman who is drinking moderate-high amounts of alcohol is to have a baby with FASD. Also, it would be a mistake to think that FASD is 'less severe' than FAS. It isn't necessarily at all. The distinguisher is facial features, one child with FASD may struggle a lot more with behaviour, emotional and social skills than another child with FAS. I'm incredibly wary of statistics like the one quoted, unless they happen to be attached to a robust research study I can read.

Despite the fact that we've known about FAS since I think the mid 1700's, FASD knowledge and diagnosis of all alcohol related conditions is only becoming widely recognised now.

Therefore I think it's almost certain there are a lot if vulnerable adults out there with undiagnosed FASD (and undiagnosed ADHD, ASD, genetic issues and the list goes on). Heavy drinking and drug use are common in DD2's birth family going back several generations (likely more). Would I be surprised if DD's birth mum has undiagnosed FASD herself? No, not at all, that's a reasonable guess to me.

Mum with FASD and difficult life story has children with FASD who get taken into care, grow up, drink heavily and have children with FASD? Not rare I think. Same with other drug use in pregnancy. Prosecuting mum with FASD? I don't think that will ultimately help break the cycle, and no one would care about her having it as well as her DC