Should taking drugs while pregnant be a crime?

It is well known that alcohol and illegal drugs can be harmful to unborn babies – often leading to learning difficulties and irreversible health problems.

But should pregnant women be prosecuted for consuming these products?

Some evidently think so – although it would be a huge invasion of women’s autonomy, and could set a dangerous precedent.

Even so, the idea has cropped up in a number of countries.

The first prosecution

Last year in Tennessee, the first woman was charged under new state laws that make it an “assault” to take drugs while pregnant.

The 26-year-old mother was arrested when she and her baby tested positive for methamphetamine shortly after the birth. She admitted taking methamphetamine a few days before her baby was born.

Under this Tennessee law, a woman can be prosecuted if her infant is harmed or addicted to a narcotic drug while she was pregnant.

The Monroe County Sheriff, Bill Bivens, said that he hoped that the arrest would deter other women who are pregnant from using drugs.

This is a classic example of the theory of general deterrence – using harsh penalties to persuade people not to act in a certain way.

But this kind of strategy ignores the way that drug and alcohol addiction works, as users are often unable to make rational decisions under strong addiction.

And of course, simply criminalising this kind of behaviour isn’t going to fix the problem – all it does is to punish women rather than promoting rehabilitation and healthy pregnancies, and can ultimately affect the child whose mother may be sent to prison or otherwise subjected to conditions which set her up for failure.

In Tennessee, women who commence a treatment program before birth and finish it successfully after the birth may use this as a defence to the charge. But it is not always easy to find a place in a rehabilitation clinic, as many are filled to capacity.

It is feared that the law may cause some women to undergo late terminations, or be deterred from giving birth in hospital for fear of being tested and prosecuted.

The UK

One recent UK case found that mothers could not be prosecuted for heavily drinking when pregnant.

The mother, who could not be named, was charged with causing “grievous bodily harm” to her daughter, who was born with foetal alcohol syndrome. The mother drank an estimated half a bottle of vodka and eight lagers every day whilst pregnant.

This resulted in her child suffering learning, behavioural, development and memory problems.

In court, the mother was found not guilty, as the judges held that the charge of grievous bodily harm could not attach to a foetus under UK law.

The tragedy of this situation is evident – and there are many children who are born with foetal alcohol syndrome in Australia.

What about in Australia?

Even before the UK landmark case, the idea of criminalising women who drank during pregnancy had trickled through to Australia.

Under Northern Territory laws, child protection legislation does not kick in until a child is actually born. Because of this, the NT government toyed with the idea of introducing legislation which would impact mothers who drank while pregnant. According to the plan, those who did not reform their behaviour could be prosecuted or restrained.

The NT Attorney General has acknowledged that such laws would have human rights issues, but stated that he will “cross that bridge when we get there.”

The proposal has not yet gained traction – with a range of critics condemning the plan.

Aboriginal leaders have said that they wish to tackle the problem in their own way, without interference from the State.

Experts from the Foundation for Alcohol Research and Education and Criminal Lawyers Association of Northern Territory agreed with the government that foetal alcohol syndrome is a serious problem that needs attention.

However, they say that bringing in the criminal law is not the way to go. Director of the Foundation Caterina Giorgi says that the legislation would lead to some of the community’s most vulnerable being locked away without the appropriate support and treatment – which would be counter-productive for both women and their unborn babies.

Russell Goldfam from the Criminal Lawyers Association asserts that incarcerating people is the worst way to try and combat the problem.

The idea of prosecuting women for drinking or taking drugs whilst pregnant has not made it into law anywhere in Australia.

It seems that, despite it’s brief appearance, the NT government is not keen to move forward with the idea, meaning that it is unlikely to make its way into Australian law anytime soon.

Ugur Nedim About Ugur Nedim
Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Drug Defence Lawyers.

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