Maternal Liability for Prenatal Harm

Abstract

Could women be held responsible for prenatal harm due to their conduct during pregnancy and would this be justified? It is tempting to assume that women's rights are secure from the interference that legal liability for unintentionally causing harm to their future children through their behaviour during pregnancy would represent. After all, women have not faced criminal liability for such harm in the almost three decades since the House of Lords ruling in Attorney-General's Reference (No 3 of 1994) [1997] 3 WLR 421, which suggested that such liability might be possible, and in light of the more recent case of CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation [2014] EWCA Civ 1554 in which the Court of Appeal expressed a reluctance for the law to interfere with the behaviour of pregnant women. In this thesis I consider whether we are right to assume that there is no prospect of women facing such liability and conclude that we are not. Further, I argue that such liability would not be justified. I take a fresh approach to the question of maternal liability for prenatal harm by considering how the behaviour of pregnant women is currently being policed in public health measures aimed at reducing prenatal harm and asking whether this could translate into legal liability. In Papers One and Two, I consider how women are currently held responsible for prenatal harm in public health, with a focus on the policy to routinely screen all women for behaviours such as smoking and drinking during pregnancy. This is followed in Paper Three by an analysis of the reasoning in Attorney General's Reference (No 3 of 1994) and CP to determine whether criminal liability remains a possibility for women whose behaviour during pregnancy results in harm to their future child. I argue that the moral judgment of pregnant women who drink or smoke during pregnancy, reflected in public health policies, could be used to support calls for criminal liability, exploiting the opportunity left open by the focus on the status of the victim in these cases. Finally, in Paper Four, I consider whether the unequal treatment of mothers and fathers in the Congenital Disabilities (Civil Liability) Act 1976 is justified and argue that reform is needed to bring the civil law up to date with changes in society, the criminal law, and medical science. Without such reform, the exclusion of maternal liability in the civil law is open to legal challenge, threatening women's hard won rights. Together, these papers demonstrate that if we want to improve outcomes for future children and protect women from liability for prenatal harm and the threat to their autonomy this would represent, it is time for a shift in the view of pregnancy taken by the law and in public health. Far from being in conflict, in the case of wanted pregnancies that women intend to bring to birth, the interests of pregnant women and future children are closely aligned and any attempt to impose a legal duty on pregnant women to act in the interests of their future children is likely to be unwarranted and counterproductive.

Date of Award	1 Aug 2023
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Rebecca Bennett (Supervisor) & Catherine Stanton (Supervisor)