Assuming that the moral obligation of a pregnant woman to her fetus is to take reasonable steps to ensure that it is born in good health, society rightly has some form of legal framework to deal with harmful maternal behaviour during pregnancy. There is an increasing trend towards legal actions against pregnant women especially in America. However, the use of incentives is morally preferable to legal threats. An alternative legal framework, such as that found in the UK where the fetus has no legal standing, might facilitate the use of incentives to encourage healthy maternal behaviour. There is a problem when pregnant women still continue harmful behaviour or refuse medical help that would prevent harm. Although the UK legal framework is morally and practically preferable there is a legal lacuna that could be filled with an intentional crime of prenatal injury supplemented by differential penalties for supplying the pregnant with harmful substances. There are cogent reasons to keep a “hands-off pregnant women” legal framework.
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References
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For example, in Illinois, the Juvenile Court Act was amended to define infants with controlled substances in their blood and urine as neglected. New criminal statutes such as “Conduct injurious to the newborn” are proposed. See LogliP.A.“Drugs in the womb: The newest battlefield in the war on drugs”. Crim Just Ethics1990; Winter/Spring: 23–29.
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ibid. In People v Melanie Green, a mother charged with Involunary Manslaughter and Delivery of a Controlled Substance after her baby died secondary to shortage of oxygen following premature rupture of the placenta, related to cocaine use. The Grand Jury declined to indict her, possibly as the jurors were sympathetic to her, and uncomfortable with the use of statutes not intended to be used in such circumstances.
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Re AC (1988) 533 A 2d 611. This was an extreme example of interference in the purported fetal interest. A woman dying of cancer was operated on without explicit consent, possibly despite her refusal. The hasty bedside decision was reversed on appeal, after both mother and baby had died.
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