Paying compensation to a child whose mother boozed heavily during pregnancy could see women criminalised for other behaviour that is risky to unborn babies such as eating runny eggs or unpasteurised cheese, a court has heard.
Judges in the Court of Appeal have been asked to rule whether a mum who guzzled half a bottle of vodka and eight cans of strong lager a day while pregnant committed a “crime of violence” against her unborn child.
A local authority in the north-west England, which cannot be identified for legal reasons, wants a criminal injuries payout for the girl, now six, who suffered “growth retardation” following her mother’s “excessive” boozing.
If the court rules in the council’s favour, the mum would in effect be deemed to have committed a crime by failing to restrict her drinking despite allegedly being aware of the dangers.
And a lawyer from the Criminal Injuries Compensation Authority suggested such a ruling could lead to other “dangerous” behaviours by pregnant women – such as smoking or eating risky foods – being treated as violent crimes.
Ben Collins was quoted by the Daily Telegraph as saying: “There’s a conflict of ideas about what is or is not dangerous, not only in terms of drinking but potentially in terms of smoking or eating.
“Can it be said a pregnant mother who eats unpasteurised cheese or a soft boiled egg, knowing the risk [would then be liable for the same treatment]?”
NHS guidance suggests expectant mothers avoid runny eggs in case they contract salmonella.
It also warns that cheeses, including Brie and Camembert, could pose a risk of listeriosis.
Both of these conditions can harm an unborn child.
Getty Criminal behaviour? There are fears expectant mothers could be criminalised for eating runny eggs or cheese during pregnancy
The woman in the test case, who like the council. cannot be identified for legal reasons, began drinking aged 13.
By the time she became pregnant with her second child at the age of 18 in 2006, she was consuming “excessive quantities of alcohol,” the lawyer for the child said.
Police twice intervened when she was found drunk, and she was given advice by social workers and health care practitioners about the risks of drinking heavily while pregnant.
John Foy QC argued in court that she was therefore aware that she might be harming her baby.
He said: “It was common knowledge in the population at large that drinking alcohol is harmful to an unborn baby.
“She specifically discussed the dangers of alcohol in pregnancy with a social worker on at least two occasions… It cannot be the case that she did not know about the dangers.”
The court heard the woman consumed up to 57 units of alcohol per day – NHS guidelines state that drinking 7.5 units per day can be enough to damage a foetus.
There is no evidence that the mum intended to harm her child, however, the court heard that the alleged criminal offence was in the same category as manslaughter.
Lawyers representing the local authority had previously failed in their attempt to win compensation on the child’s behalf before lodging an appeal.
A judgment is expected at a later date.