Court of Appeal to decide if drinking alcohol whilst pregnant is to be made illegal

In a recently listed landmark case, the Court of Appeal will be asked to consider whether drinking excessively whilst pregnant amounts to a criminal offence.

A local authority in the north-west of England has filed a lawsuit against the Criminal Injuries Compensation Authority (CICA) to secure compensation from a mother whose heavy drinking during pregnancy, it alleges, resulted in the child being born with foetal alcohol syndrome.

In 2008, despite numerous warnings from social workers and antenatal medical staff, the mother allegedly continued to abuse alcohol, intentionally risking the life of her then unborn daughter. The local authority argues that the actions of the mother constituted the crime of poisoning.

It won its claim against the CICA in the initial hearing but lost in the upper administrative tribunal. Judge Levenson held that an unborn child is not a person in law and therefore no criminal offence could have been committed.

The case has provoked a wide-ranging debate about the rights of the foetus and calls for mothers who drink excessively during pregnancy to be prosecuted. Neil Sugarman, of GLP Solicitors, who is representing the local authority, said that some US states have made it a criminal offence for women to drink excessive alcohol whilst pregnant.

He welcomed the legal permission allowing the case to go to the Court of Appeal. He argued: "This case involves a child who is now six years old and was born with foetal alcohol syndrome after her birth mother continued to drink alcohol excessively during pregnancy after having been warned that this might damage her child... At an original appeal hearing a tribunal decided that this was tantamount to poisoning the child and that she had been the subject of a violent crime for the purposes of the Criminal Injuries Compensation Scheme."

Sugarman said he would challenge the accepted legal convention that an unborn child cannot be a person under law. The child in this case, he maintained, resulted in very similar injuries to cases involving young infants who were shaken violently shortly after birth and suffered severe brain damage.

If successful, the case could create a legal precedent with far-reaching implications about a pregnant woman's right to control her body and whether a foetus has legal rights before it is born.

Statistics from the Department of Health show that one in 100 babies are now born with alcohol related disorders and in the past 3 years there has been a 50 per cent rise in Foetal Alcohol Syndrome and a shocking 313 newborn babies were harmed from exposure to alcohol in the womb in the years 2012-2013.

The case is likely to be heard in Autumn 2014.

You can obtain more information on Foetal Alcohol Syndrome from FAS Aware UK and Drink Aware.