Personhood laws for foetuses - risks for all women of child-bearing age

[DebrisSlide]

I can't say much about this in text because I am frothing beyond coherence, but given the muted response in FWR, I thought I'd see what the wider MN community thought about this not a DM article

Rational response (imho) here

[StealthPolarBear]

Genuine question, and I hope this doesn't upset anyone
If a man punches a woman in the stomach and the baby is harmed (say stops growing and requires immediate delivery) would the man be charged for abh against the baby and mother, or just the mother?

[StealthPolarBear]

or if someone spiked a pregnant woman's drink with a substance that is also harmful to the fetus?

[BackOnlyBriefly]

Apparently there is something called the 'born alive' rule and you'll get lots of hits if you search for that. I'm still reading about it. For example:

born alive rule wikipedia

[StealthPolarBear]

right, so it's qiute complicated. I suppose it must be.

[NiceTabard]

Stealth I would say that it would be the same as any other type of harm. So, if I cut myself, it is not illegal, if someone else cuts me it is. If I commit suicide (or try to) it is not illegal, if someone else kills me or tries to kill me, it is.

So I am allowed to do things like give blood, drink too much, donate a kidney, have a termination. If others try to do those things to me, it is illegal.

Thus I think that a woman is allowed to do things that might harm a foetus - as it is a part of her body - but others are not allowed to do those things to her.

Most people get that I think. That a woman should be legally allowed request and have an abortion, but that does not mean it should be legal for others to cause her to abort without her request etc.

[Blistory]

Logically, and the only way to prevent criminalising women, is for any assault on a pregnant woman, to be considered an assault on her person.

That way, you can prosecute a third party for causing harm to the foetus/woman but would protect women in general as you wouldn't prosecute them for self harm.

[NiceTabard]

Which is where it went so wrong for that poor woman in the US.

Using a law which was intended to prosecute for violence against pregnant women, instead being used to imprison a suicidally depressed pregnant woman.

[Blistory]

What worries me is that I genuinely think that if this issue was put to a vote, there would be a significant number of people who would actually think that it's ok to punish women for 'risky' behaviour during pregnancy.

It would say so much about how far from achieving liberation women actually are.

[notbloodybranston]

Epileptic, current non drinker.

Thinking out loud:
If I am advised by doctors that an anti epileptic drug is fine during pregnancy, I take that drug, and it causes harm to a foetus? Then, under English Law I do not have the mens rea/ intention - to harm the foetus and I can't be prosecuted/sued. The child's representative could prosecute/sue drug company, but not me or Doctor (if Doctor is acting on NICE guidance).

If I drink copious amounts of booze, not knowing I am pregnant, and then stop drinking when I find out - I would argue that without knowledge of pregnancy I couldn't have knowingly caused harm. Knowledge is an important part of most criminal and civil law isn't it? So, child's representative couldn't bring case against me?

But if knowing I am pregnant I drink heavily (just for an example) and child is born with FAS (and yes I have too much knowledge of this syndrome). Then damn right that child should be able to sue me for damages. I have caused them physical and mental harm. It was my choice to do that to them.

[NiceTabard]

I can't see any benefit to society whatsoever, of criminalising and imprisoning women who are addicts.

Quite aside from the insidious erosion of the rights that women have fought so hard for.

[NiceTabard]

And when you take it onto imprisoning women who eat some unpasterised cheese / a medium rare steak / goes skiing then you're in real trouble.

Plus of course the fact that it would mean abortion would have to be illegal (as killing a foetus is clearly the ultimate in damaging it).

[Blistory]

And if you're pregnant knowingly and change the cat's litter tray and pick up an infection that affects the foetus, should your child be able to sue you ?

It's not about knowledge, it's about whether you caused harm and whether a reasonable person should have know that they were pregnant.

So if you're a woman of child bearing age and have had sex, then there is a possibility that you may be pregnant and so a reasonable person would act as if they were. Not knowing you were pregnant wouldn't be a defence. You should assume as a woman that you might be and act accordingly.

Therein lies the madness.

There has always been the ability to sue for damages for harm caused to a foetus that has been born and suffers ongoing harm - hence why there are so many medical negligence claims against the NHS for actions taken by HCP during treatment and monitoring of pregnancy and childbirth and I agree that logically if you can sue one party who caused harm, you should be able to sue the other but that completely ignores the unique situation that a pregnant woman is in and whether she should have autonomy over her body.

[notbloodybranston]

It's been a hell of a long time since my law degree, and this isn't my area - but as far as a criminal prosecution goes it is all about knowledge isn't it? Knowledge and intention?

In tort - it can be about failure to act which leads to injury, but even then you've got to have a reasonable expectation of where your failure to act will lead to - foreseeability (Donohue v Stephenson).

Any law could only be drafted from the point in time when a woman had knowledge of the existence of a foetus.

You would end up on a kind of hell of circle of hell - perhaps alcoholic mothers refraining from using pregnancy testing kits? But then at some point it being fairly obvious to all they were pregnant? Also would it be a defence if the women tried to get help but the local NHS trust had no funding for rehab/specialist midwife addition services.

Horrifically complex. Nigh impossible to draft. But, if I was representing the child I would definitely want to give it a go.

[Blistory]

Don't know about criminal law but knowledge and intent aren't necessary for civil claims for damages hence being able to sue for medical negligence.

There wouldn't need to be an argument that the woman knew she was pregnant, just an expectation that if she was of child bearing age and sexually active, then she should have been aware that there was a possibility that she was.

And then what about overweight women who go on to have problems with gestational diabetes that then affects the foetus for various reasons. Should those women be sued for not getting into condition before they got pregnant ?

Do we really want to go there ?

[notbloodybranston]

I'm sorry about your daughter Mrs DeVere, I've been a member for a long time and remember her illness and your loss well.

But the answer to your question is surely yes with proof? I know a law firm called Pannones was looking into helping children of soldiers, whose exposure to chemical weapons led to deformity (rather than cancer). I'm currently looking into a well know massive manufacturer in South Manchester, whose produce you can smell as you drive past. It's situated next to my parent's house. 28 people have died of cancer in my parent's street in the last 15 years. People in their 30s - 60s (Mum was 62 with no genetic history of cancer on either side of her family). It will be difficult/impossible to prove, and we are giving it a go. Class action is the best way.

[notbloodybranston]

Agree Blistory - civil claims = tort (reasonably foreseeable)

[notbloodybranston]

parents'

[notbloodybranston]

Diabetes, epilepsy, alcoholism -all recognised illnesses.

If you follow medical advice whilst pregnant with such illnesses, then you have no intention to cause harm so no crim prosecution?

Tort/civil? God knows? Defence again - followed all medical advice?

[BackOnlyBriefly]

It might be thought that a woman chooses to be pregnant, but actually that's not really true. There are modern drugs and other means to actively prevent pregnancy which you can choose to use. Many of which have some detrimental effect so can't be compulsory and some means are actively forbidden by major religions so they can't be compulsory either.

Otherwise in the course of normal behavior you may or may not get pregnant. It can't surely be assumed that it was a choice. If not a choice then it's like being held responsible for the welfare of a squatter.

If your plan was to drink every night and go skiing every day and then you found that a fetus was occupying your body how could it become a legal requirement to stop doing those things and only act for the good of that fetus?

Perhaps you can sue the child (much later) for taking away your freedom. Something akin to false imprisonment.

I know no one looks at it that way, but it's no more ridiculous than this latest notion.

[notbloodybranston]

I can see what you're saying

I suppose I'm imagining a client coming in and saying:

1. I have a life long, life damaging, serious condition
   
2. I will need care/support for the rest of my life.
   
3. This condition was caused by Person A, who caused the damage by carrying out certain actions _knowing that it could/would/be reasonably foreseeable to cause me the harm from which I now suffer.
   
   I'd want to help that client I suppose.

[Mishmashfamily]

I don't see the need to drink alcohol while pregnant. can people really not go nine months with out drinking alcohol. We all know what goes through our system, goes through theirs.

It's the same as smoking .

I gave up both.

It's selfish. When you 'choose' to have a baby why would you want to put toxic chemicals through them.

Would you put a shot of wine in their bottle? If study's show it can/does effect them why would you even risk it?

Turning a blind eye to medical advancement for your own needs is just selfish and stupid.

By the way this is coming from some one that watched a family member sink two bottles of wine every weekend although her pregnancies

[notbloodybranston]

It's my right to do what I want with my body - drink, drugs etc. But whilst I'm taking drink/drugs, if I cause an adult or child harm I will be prosecuted (drink driving/neglect)

[Blistory]

And how many women would have the funds to meet such a damages claim ? Or should we just be sending them to jail ?

Should we now insure ourselves against possible harm that might be done to future foetuses ? Should I get regular blood tests to ensure I have no deficiencies which might result in a less than optimal pregnancy ? What if I forget to take the folic acid prescribed ?

How do you prove which drink it was that caused the harm ? Was it the one that the woman had when she was 8 weeks pregnant and didn't know or the occasional glass of wine during the third trimester ? How are you going to prove it when all the medical advice is so vague and changes, possibly during the course of a pregnancy.

[notbloodybranston]

I have to go now as haven't got on with work. But I just wanted to say that I'm in a quandary, as on one hand I don't believe a foetus is a person, and I am pro-choice.
But I don't see this as personhood law - I think I view it as a right to sue someone who has knowingly caused you damage. And you are only able to sue when you are actually a person - when you've been born, grown and become aware of the damage that has knowingly been done to you.
For me - knowledge (crim prosecution) or reasonably foreseeable (tort) are key words. But a better woman than me with much more up to date knowledge of practice might set me straight.