Wednesday, February 05, 2014

Foetal Alcohol Syndrome

I actually sympathise with the narrow point being made by Zoe Williams in this article: I don't think that it would be particularly helpful for the lifestyle choices of mothers in pregnancy to be the subject of criminal law. But I'm not sure about her wider philosophical point.
So what happens if the local authority wins? Since a violent act has been committed, doesn't that make the mother criminal? Would she be prosecuted? Would she be sentenced? Would they have to balance the sentence against the fact the baby had been removed? Would the removal of a child thereby become a punishment that could be tariffed in law? What does this mean for abortion? If you can commit a crime against a foetus, it must, in the first instance, be criminal to terminate it, surely?
Well, in that first instance, it is criminal to abort a foetus, unless the specific requirements of the Abortion Act are adhered to. The Abortion Act provides a limited (in theory at least) set of circumstances in which the general prohibition on killing unborn children is relaxed. But a backstreet abortion would unquestionably be criminal, both on the part of the abortionist and of the mother.

There's a rather odd legal citation too:

One judge... ruled that a foetus can't have personhood, and therefore can't have a crime committed against it.
The judge's name isn't given, and the judgment isn't cited, but this simply isn't correct. A foetus can have an offence committed against it. Not only illegal abortion, but Child Destruction as well. This is, as well as being a serious moral issue, an absolute staple of Law School problem questions. A heavily pregnant woman is punched in the stomach, causing the death of her unborn child, but only superficial bruising to the woman: what offences have been committed? Zoe Williams (and her judge) seem to be saying that since the foetus isn't a person, no offence against it can have been committed, and our offender has only been guilty of common assault.

The law recognises the sanctity of human life, and extends that protection to the unborn. Where exceptions are made, that is what they are: exceptions.

Incidentally, the judge's comments are a bit odd. A wall doesn't have personhood either, and it can certainly have an offence committed against it - criminal damage, say, or arson.


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