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- Harm to the fetus by third parties, which occurs from physical assault to a pregnant woman, or from the effects of a negligently prescribed or inadequately evaluated drug; and
- gestational in‐utero harm that occurs as a result of the action of the pregnant woman herself, for example drinking, smoking, or drug abuse.
Also, in‐utero harm can be divided into lethal, leading to fetal death, and non‐lethal forms, which do not kill the fetus but could lead to serious, life‐long health problems of the future child, if the pregnancy is not terminated.
Third parties' in-utero harm is recognized as a crime by essentially all jurisdictions, and the third party who caused the harm is usually condemned to pay compensation to the woman and, if the act was malicious, to prison. Abortion is a kind of lethal in-utero harm, and pregnant women have the right to it under the laws of most of the countries, although some restrictions may apply.
If non-lethal gestational harm should be recognized by the law and, in such a case, how the law should intervene, is a difficult ethical problem.
From a pro-life point of view, the fetus is a person with full rights, so any action harming it should be legally prosecuted, no matter if it comes from third parties or from its own mother, case closed.
From a pro-choice point of view — or from any position which does not consider the fetus as a person with full rights — the situation could seem easier: The fetus is not a person, hence the harming of it can not be prosecuted per se, but can be prosecuted only as a damage of the mother. Hence, the mother can sue a third party which harmed her fetus; but the future child, or some legal representative of the fetus/child, can not sue the mother for having harmed her fetus, since the fetus has no rights. Indeed, this is how the law usually deals with cases of children suing their mothers for in-utero harm (see Court cases). However, it can be argued that the fact that the fetus has no right is irrelevant to the discussion, since the born child has rights, and actions harming a person are usually prosecuted independently if they were committed before or after that person was born.
In a 2016 paper in Bioethics, the following analogy is proposed: If a pharmaceutical company releases a new drug knowing that it has a 25% chance of causing physical defects and brain damage to fetuses, and indeed 25% of women who consumed that drug have a fetus affected by such illnesses, then "there is a strong intuitive case that the [company] should be subject to legal sanction, and that the parents and child should be legally entitled to financial compensation." Similarly, if a woman is aware that consuming a particular substance during pregnancy imposes a 25% risk of causing physical defects and brain damage to future children, but she elects to take the substance during pregnancy, and her child is subsequently born affected by physical defects and brain damage, then "the fact that it is the child's parent who has harmed them provides no reason for exemption from prosecution or compensation." Indeed, from a moral perspective, the parents should have a special obligation to protect their children, and a harm coming from them should be even worse than a harm coming from third parties.
Common gestational harm
There are several situations in which a pregnant woman's actions could seriously but non‐lethally harm her fetus and future child.
- Alcohol consumption during pregnancy can cause many health conditions in the future child. These go under the name of fetal alcohol spectrum disorders (FASDs) and include: abnormal appearance, short height, low body weight, small head size, poor coordination, low intelligence, behavior problems, and problems with hearing or seeing. These disabilities cause life‐long injury, which may severely undermine the welfare of the affected child and adult. For this reason, medical authorities recommend no alcohol during pregnancy or while trying to become pregnant. However, some 2015 surveys from the United States have found that 10% of pregnant women have drunk alcohol in the last month, while 20% to 30% drank at some point during the pregnancy. Also, FASDs are estimated to affect 2% up to 5% of people in the United States and Western Europe.
- Smoking tobacco when pregnant has a negative impact on fetus and future child health. Precisely, smoking can lead to deformities, spontaneous abortion, premature birth, and lower birth weight. A 2008 survey conducted by the Pregnancy Risk Assessment Monitoring System showed that in the United States about 13% of women smoke during the last 3 months of pregnancy, and among them 52% smoke 5 or fewer cigarettes per day, 27% smoke 6 to 10 cigarettes per day, and 21% reported smoke 11 or more cigarettes per day.
- Cannabis consumption during pregnancy has negative effects on future babies. They have been found to weigh significantly less, to have shorter birth lengths, and to have smaller head circumferences. There are also evidences indicating that marijuana may cause problems with neurological development, resulting in hyperactivity, poor cognitive function, and changes in dopaminergic receptors. Notably, Cannabis is the illicit drug most commonly used during pregnancy, and the self-reported prevalence of marijuana use during pregnancy ranges from 2% to 5% in most studies.
- Vitamin B12: Insufficient consumption of vitamin B12 is likely to increase the risk of spina bifida and other neural tube defects in babies. Vegans, vegetarians, and women who have intestinal disorders that prevent them from absorbing vitamin B12 are the most at risk.
- In 2014, a local authority in the north-west of England caring for a 7-year old girl, who suffered from severe brain damage due to foetal alcohol spectrum disorder, sued the girl's mother for drinking heavily during pregnancy. The authority argued that the mother committed the offence of poisoning and that the girl was entitled to payments from the Criminal Injuries Compensation Authority. The three judges of the court of appeal agreed that there had been no crime of violence, since the offence of poisoning requires the victim to be "another person" and an unborn baby is a "unique organism" but not a person. Also, the judge Colman Treacy said that: "A mother who is pregnant and who drinks to excess despite knowledge of the potential harmful consequence to the child of doing so is not guilty of a criminal offence under the law if her child is subsequently born damaged as a result."
- In 1996, in Canada, Winnipeg Child and Family Services sued for custody of the child of a glue sniffing-addicted mother pregnant with her fourth child, noting that glue sniffing may damage the nervous system of the developing fetus. Indeed, as a result of her addiction, two of her previous children were born permanently disabled. A superior court judge ordered that, on the ground of parens patriae jurisdiction,[note 1] the mother be placed in the custody of the Director of Child and Family Services and detained in a health center for treatment until the birth of her child. The order was later set aside on appeal. The Court of Appeal held that the existing law of parens patriae did not support the order, since the law of Canada does not recognize the unborn child as a legal person possessing rights.
- The power of the state to intervene as the legal guardian in cases of abusive or neglectful parenting
- Wilkinson; Skene; De crespigny; Savulescu (2016). "Protecting Future Children from In‐Utero Harm". Bioethics 30 (6): 425-432. https://dx.doi.org/10.1111%2Fbioe.12238.
- Kuhse; Schüklenk; Singer (2015). Bioethics: An Anthology. Wiley-Blackwell. ISBN 1118941500. Liability for Harm to an Unborn Child, p. 567
- Chudley (2005). "Fetal alcohol spectrum disorder: Canadian guidelines for diagnosis". CMAJ 172 (5 Suppl): S1–S21. https://doi.org/10.1503/cmaj.1040302.
- "Facts about FASDs". 2015. https://www.cdc.gov/ncbddd/fasd/facts.html.
- Vice Admiral Richard H. Carmona (2005). "A 2005 Message to Women from the U.S. Surgeon General". https://www.cdc.gov/ncbddd/fasd/documents/sg-advisory.pdf.
- Committee to Study Fetal Alcohol Syndrome, Division of Biobehavioral Sciences and Mental Disorders, Institute of Medicine (1995). Fetal alcohol syndrome : diagnosis, epidemiology, prevention, and treatment. Washington, D.C.: National Academy Press. ISBN 0-309-05292-0. http://www.nap.edu/catalog/4991/fetal-alcohol-syndrome-diagnosis-epidemiology-prevention-and-treatment.
- "Australian Government National Health and Medical Research Council". http://www.nhmrc.gov.au/your-health/alcohol-guidelines.
- "Fetal Alcohol Exposure". 2015. http://pubs.niaaa.nih.gov/publications/FASDFactsheet/FASDfact.htm.
- "Data & Statistics Prevalence of FASDs". 2015. https://www.cdc.gov/ncbddd/fasd/data.html.
- Ness; Grisso; Hirschinger; Markovic; Shaw; Day; Kline (1999). "Cocaine and Tobacco Use and the Risk of Spontaneous Abortion". New England Journal of Medicine 340 (5): 333-9. https://doi.org/10.1056/NEJM199902043400501.
- "[Infographic 12 Do's and Don’ts of Pregnancy"]. http://www.pregnancysavvy.com/infographic-12-dos-and-donts-of-pregnancy/.
- "2004 Surgeon General's Report". Center for Disease Control. https://www.cdc.gov/tobacco/data_statistics/sgr/2004/pdfs/chapter5.pdf.
- Joan Engebretson (2013). Maternity Nursing Care. Canada: Nelson Education, Ltd.. p. 417. ISBN 978-1-111-54311-2.
- "Preventing Smoking and Exposure to Secondhand Smoke Before, During, and After Pregnancy". CDC, Department of Health and Human Services. 2008. http://www.ctparenting.com/_files_/smoking.pdf.
- Fergusson; Horwood; Northstone; ALSPAC Study Team (2002). "Maternal use of cannabis and pregnancy outcome". BJOG: An International Journal of Obstetrics & Gynaecology 109 (1): 21-27. https://doi.org/10.1111/j.1471-0528.2002.01020.x.
- Metz; Stickrath (2015). "Marijuana use in pregnancy and lactation: a review of the evidence". American Journal of Obstetrics & Gynaecology 213 (6): 761-778. https://doi.org/10.1016/j.ajog.2015.05.025.
- "Marijuana Use During Pregnancy and Lactation: ACOG Committed Opinion No. 722". Oct 2017. https://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Obstetric-Practice/Marijuana-Use-During-Pregnancy-and-Lactation.
- Birth Defects Linked to Low Vitamin B12: Study Shows B12 Deficiency May Raise Risk of Spina Bifida and Other Neural Tube Defects by Jennifer Warner (March 2, 2009) WebMD.
- Owen Bowcott (Dec 2014). "Mother who drank heavily when pregnant not guilty of crime, court rules". The Guardian. https://www.theguardian.com/law/2014/dec/04/mother-drank-heavily-pregnant-not-guilty-crime.
- Michael Holden (Dec 2014). "Child disabled by mother's drinking not crime victim - UK court". https://uk.reuters.com/article/uk-britain-child-alcohol/child-disabled-by-mothers-drinking-not-crime-victim-uk-court-idUKKCN0JI1BA20141204.
- "Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)". 1997. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1562/index.do.