This blog is not intended to provide legal advice, legal services or legal anything else. Don't sue me. All I have is debt anyway.

Tuesday, June 26, 2007

Babies and Law

Bean over at Lawyers, Guns & Money has had a few posts on the recent developments of prosecuting pregnant women for endangering their unborn children. (I have also linked to an interesting article on the same topic in the sidebar.) On the surface, this sounds like a great idea right? How many crack babies are born each year? Babies with fetal alcohol syndrome and such? But the matter is much much more complicated than a blanket "pregnant women go to jail for endangering the health of their unborn children" law can provide. As with most reactionary laws, it sounds good on paper but is horrendous in practice.

Women with drug addictions and alcohol addictions need serious medical treatment, something that jails can't provide. And sure, being in jail might prevent a woman from using, but being in jail can just as easily endanger the life of both mother and child. Stories about women being refused medical attention and giving birth, alone, in a dirty cell, have been recently publicized. It seems like a more compassionate solution would be rehab rather than a prison cell.

But another concern is, what constitutes endangerment? Just drug and alcohol abuse? One mother was prosecuted for murder after her child was stillborn, because it was claimed that she waited too long to agree to a caesarean during a complicated pregnancy. So where does the liability end? Pregnancy is risky even when it's normal. There's a very high risk of miscarriage in the first trimester, and some risk remains for the rest of the pregnancy. A perfect pregnancy can go wrong very quickly, and experts are still baffled as to why. Women who smoked a pack a day, and drank during pregnancy can have perfectly normal children, while a woman who lived by What to Expect When You're Expecting, gained only 25 pounds, exercised regularly, etc., can have a child with birth defects, or worse, can lose not only the child, but her own life during pregnancy and delivery. A murder charge requires proof beyond a reasonable doubt that someone's actions caused the death of another.

But where does it end? Doubting women's medical decisions (even if they turn out ultimately, and tragically, to be wrong)? Not taking prenatal vitamins? Coloring her hair? Gaining too much weight during pregnancy (even when it's not because the woman ate four cheeseburgers a day)? Not gaining enough (maybe prosecuting women with eating disorders)? Eating sushi (surely we can't prosecute the entire nation of Japan)? Eating not-reheated lunch meat? Or having the occasional half-glass of wine after the first trimester? All these things are considered "risks" but whether any of it would make a real difference is doubtful.

All in all, the criminalization of poor prenatal choices makes me uncomfortable for many reasons. Not just because I am making, and will continue to make, several choices that many people believe constitute proto-child abuse (i.e. eating sushi, drinking small amounts of caffeine, eating lunchmeat and I will definitely be coloring my hair next week). It's sad to think that a person might suffer a disability because of choices their mothers make during pregnancy. But policing prenatal care is dangerous ground, even when the prenatal choices are in fact risky.

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