The case concerns the ability of a child (CP) to claim criminal injury compensation from the Criminal Injuries Compensation Authority (CICA). The injury being a direct consequence of her mother’s excessive alcohol drinking while pregnant, resulting in serious bodily harm to the child (CP) who was born with Foetal Alcohol Spectrum Disorder.
There was acceptance between the parties, in the facts of the case, that the child (CP) had suffered grievous bodily harm due to the mother’s deliberate drinking (the mother had been made aware that continued excessive drinking would cause harm to her unborn baby). However, as per the requirements of s23 of the Offences Against the Persons Act 1861, the harm needed to be directed at a person. The question of law therefore was whether or not a foetus utero (in the womb) can be classed as a person. The outcome of this criminal compensation case can be summed up in the words of the Master of the Rolls, Lord Justice Treacy, who held that: “an essential ingredient for a crime of grievous bodily harm is that it must be directed at a person. GBH on a foetus will not suffice.”
House of Lords judgement.
Such a Court of Appeal decision is consistent with the earlier House of Lords judgement in Attorney General Reference Case (No 3 of 1994) 1998. In the AG Ref Case the court determined that a defendant (who had stabbed a pregnant woman) could not be liable for the murder of the woman’s foetus utero – but could be liable for the constructive manslaughter of the baby. This can only apply IF the foetus is born and lives independently outside the womb – only to subsequently die as a result of the unlawful and dangerous act of the defendant.
The concluding logic of the argument, in both cases, being that a foetus in utero does not have independent life – like a born (baby) person does.
In the US they take a different approach.
While in England and Wales that is the view of the law. In the United States, the state of Tennessee have introduced a law that makes it a criminal offence to ‘assault’ a foetus through illegal drug use. Indeed, a 26-year old woman, Mallory Loyola, was arrested, charged, and pleaded guilty, to misdemeanour assault after she and her newborn baby tested positive for meth. This follows a new state law, introduced in July 2014, that allows mothers to be prosecuted for assault for the illegal use of a narcotic drug while pregnant if the child is harmed by, or becomes addicted to the drug.
Critics of the new Tennessee law claim that it discourages women, battling addiction, from seeking treatment or pre-natal care. The legislation has been challenged by the American Civil Liberties Union — which argues that the law takes the wrong approach by criminalizing addiction.
Similar controversial change in the UK is unlikely.
Such a prosecution in the USA is dependent upon recognising a foetus as a person that can be ‘assaulted’ while in the womb. This is in stark contrast with English law, that sees a foetus as a unique organism that is not living independently of the mother, so is therefore not an independent person that can be directly assaulted. Any changes to the English Law standpoint would need a significant and controversial re-think of the law by the UK Supreme Court, or via an equally controversial Act of Parliament designed to protect an unborn child. In my judgement, such controversial change in the UK is unlikely – but possible.
Published in A-Level Law Review – September 2015.