Mother drinks heavily with child in utero...

[peterb]

Absolutely - but should that be enshrined in law? Should men and women be treated differently in law? I'd say no. They're people. Treat them as people.

Legally, foetuses aren't people. If you want to change the legal standing of pregnant women to protect their foetus, then you're removing a person's legal rights in preference to a non-person. Essentially, you'd be enshrining in law that a pregnant women is less of a person than a non-pregnant woman (or a man). Personally, I find that abhorrent. I'd be kind of surprised if most people didn't.

As a parent, you have legal responsibilities to your child. Does that make you less of a person (in law or otherwise) than a non-parent? People are treated differently in law in many cases. Members of the Armed Forces are subject to the Armed Forces Act, which does not apply to civilians. Does that make one category lesser than the other?

[yamangman]

I wish I could be so certain!

As a lover of thought-provoking sci-fi and romance I have indeed read 'The Handmaids Tale', as I have also read PK Dicks short work 'The Pre-Persons', I would commend it to your good self if you would like to enjoy (or not!) a somewhat extravagant literary antonym to your proposed read.

I would not be so egotistical to suggest my own opinions matter, I also hope it is obvious to others I've tried to be careful to limit my discussion to this particular case. I entertain your notions (albeit with much less certainty) as well as entertain contrariwise notions. Opinions unequivocally do matter however. This is how society is shaped isn't it? Particularly with regards to such tangled and muddy matters, though I've no doubt you'd find good grounds for disagreement with me.

The law quite clearly is very concerned with facts, but lets not simplify the mechanisms it provides - the arbitration of differing or opposing views, the notion of precedence, as a tool to provide order. None of these are necessarily solely concerned with facts. I therefore cannot with certainty accept that a foetus is not a person fact. Under our imperfect law, an early foetus is not a person - this I can just about accept as a point of law - a mechanism to provide a starting point, a mechanism to decide who is subjected to suffering or not, a mechanism to criminalise people or not, a point of certainty, an imprecise instrument, a blunt tool. It is an idea that is poorly focussed though a tarnished lens of opinions and morals and laws. I cannot see it so simply as fact.

Let me, for now, accept your ideas in full. In this case, society is still left with what is a now a very sick person. Is there no accountability? Should there be? I have not read a full court report so cannot verify your assertion that 'they were arguing that the damage was done at the early developmental stages'. I have this quote from the article linked to:

Lord Justice Treacy said that Parliament had not legislated to criminalise excessive drinking of a pregnant woman expect[sic] in cases of intent to procure a miscarriage, or to destroy the life of a child capable of being born alive, before it is born.

Law already 'discriminates'. I believe there is an extremely strong case that the woman in question got out of serious trouble on a technicality - were this not such an emotive and politically volatile issue, we would have laws that would criminalise the behaviour of this woman already.

Still not getting the point - a foetus *is not* a person, and it is certainly not a human being. Your "opinions" cannot change this. It is a fact. It is therefore not "another" with separate rights - it is a part of the mother.

Until it is viable (and don't be fooled by the 24-week rubbish spouted by sentimentalists - survival and viability rates at that stage are still dire, care is profligately expensive, and outcomes poor) external to the mother's body it is no more an individual entity than her appendix.

In this case, even that 24-week arbitrary marker cannot apply - they were arguing that the damage was done at the early developmental stages - you know, the part of pregnancy where many women don't even know they're pregnant.... This argument, if supported in law as thank goodness it was NOT in this country, leads to treating all potentially fertile women as objects for the production of healthy babies - look at some of the cases in America if you're not sure what happens after that bit. I'd also recommend reading something like The Handmaids Tale to get an idea of where that sort of thinking *might* end up...

[Ambersuccubus]

The sick person is no more the mother's fault *in law* and therefore in practical terms than any disabled child. Where is the accountability for those who wilfully bear heavily disabled children despite being made aware of their prognosis and who then refuse to abort? It's the same damn argument, and I certainly don't see any vitriol against the people who make that sort of decision (to note, I'm not arguing that there should be, merely pointing out the equivalency of the outcomes).

...the fact remains that a pregnant woman is different from non-pregnant women - by virtue of being pregnant.

Excuse me what now!? How is this the case? A temporary medical condition does NOT make a person different from who they were prior to having it - they are simply that person with a condition. And that's what pregnancy is, people, a medical condition of a strictly limited duration - not special, not sacred, not really society's damn business either way except in as much as any medical condition is in a country with healthcare!

Technical point, a foetus is always a human being. That's just a point of science.

No it's not. It has human genetics, true, and the potential to grow into a human being, but until it's viable, it's just cells...

[peterb]

No it's not. It has human genetics, true, and the potential to grow into a human being, but until it's viable, it's just cells...

Its usually (but not always) viable from conception, given the right conditions and the appropriate length of time.

Excuse me what now!? How is this the case? A temporary medical condition does NOT make a person different from who they were prior to having it - they are simply that person with a condition. And that's what pregnancy is, people, a medical condition of a strictly limited duration - not special, not sacred, not really society's damn business either way except in as much as any medical condition is in a country with healthcare!

Hmm, say that to a community where ebola is rampant, I think you'll find that a persons state of health is very much everyone's concern. Pregnancy is a medical condition, and society rightly recognises that and makes special provision for it, just as with any other. Its one of the reasons why we have hospitals.

[scaryjim]

As a parent, you have legal responsibilities to your child. Does that make you less of a person (in law or otherwise) than a non-parent? ...

In that case the responsibilty is to another person, and doesn't limit your inherent freedoms - as long as you make appropriate arrangements to fulfill those responsibilities, you can do as you like, including handing off those responsibilities to someone else. Any attempt to apply the same laws to pregnant women inherently prevents them from exercising their freedoms. They physically *can't* hand off their foetus to someone else to look after.

The Treacy quote yamangman mentions above is actually a nice clear statement of where the law draws the line, and it seems to me to reasonably balance the freedoms of a mother with the needs of a foetus. Swing too far the other way and you're essentially saying that a fertile women is more important as an incubator than as a person in her own right. I thought as a species we'd moved beyond that....

[peterb]

No, I think that as a species, we still need to reproduce to last beyond about 100 years we are still subject to biological processes. However the imperative for an individual to breed is reduced by the large numbers of human beings that currently exist. However, if as a species we stopped breeding, we would be pretty much extinct in 120 years.

[yamangman]

Not sure I see sense to this, I feel somewhat you argue my case for me here, as I think I've made apparant would rather not see either example aborted. I would not argue a case of accountability in the latter whereby, through no fault, no knowing action of danger to the foetus by the mother gives rise to disabled person, and the former where the knowing actions of the mother give rise to a disabled person. I don't see the equality you see here, unless we inject the prepartum imperfection of law which is the absolution of responsiblity of the mother, which I do not see as certainty and feel my doubts about it have been clearly made and won't enumerate again at this time.

The sick person is no more the mother's fault *in law* and therefore in practical terms than any disabled child. Where is the accountability for those who wilfully bear heavily disabled children despite being made aware of their prognosis and who then refuse to abort? It's the same damn argument, and I certainly don't see any vitriol against the people who make that sort of decision (to note, I'm not arguing that there should be, merely pointing out the equivalency of the outcomes).

[scaryjim]

No, I think that as a species, we still need to reproduce to last beyond about 100 years we are still subject to biological processes. ...

We need to breed, yes. We can do that without treating women as walking incubators. Try to promote a foetus' rights over the mother's, and that's essentially what you're saying - "while you're pregnant, you're more important as an incubator than a person".

EDIT for crosspost:

... I don't see the equality you see here, unless we inject the prepartum imperfection of law which is the absolution of responsiblity of the mother ...

You asked (originally) why you "shouldn't think of this as a form of attempted murder". You can, personally, think of it as whatever you like. That won't change the law, which states that the mother has not committed a crime. But you can't simply ignore the existing laws when asking a question about a legal ruling. So if you say "I think this should be attempted murder", you're fine - that's placing your personal opinion on the matter in question (although I think you'd be wrong because there's no suggestion of any intent to kill). If you say "I think this was attempted murder" you're absolutely wrong, because you're commenting on a legal case, and your opinion of what the law should be doesn't matter as far as the actual law goes; this case was clearly and legally not a case of attempted murder.

As far as the wider context goes, there are real problems when you start trying to limit the freedoms of a person based on a temporary condition, particularly if you then go so far as to criminalise activities. The question here isn't whether the mother is at fault for her daughter's condition (AFAICT that's not disputed), but whether she committed a criminal act. That's a much narrower, more specific question, and the law is very clear, including in its reasoning for the position; legally, the mother did not commit a crime. That doesn't say she wasn't responsible, just that her actions weren't criminal. It's an important distinction.

[Ambersuccubus]

No, I think that as a species, we still need to reproduce to last beyond about 100 years we are still subject to biological processes. However the imperative for an individual to breed is reduced by the large numbers of human beings that currently exist. However, if as a species we stopped breeding, we would be pretty much extinct in 120 years.

I refuse to acknowledge that the rights of "the species" come before mine. It's that simple. My body, my choice. Others may make different choices, and that's fine too.

Not sure I see sense to this, I feel somewhat you argue my case for me here, as I think I've made apparant would rather not see either example aborted. I would not argue a case of accountability in the latter whereby, through no fault, no knowing action of danger to the foetus by the mother gives rise to disabled person, and the former where the knowing actions of the mother give rise to a disabled person. I don't see the equality you see here, unless we inject the prepartum imperfection of law which is the absolution of responsiblity of the mother, which I do not see as certainty and feel my doubts about it have been clearly made and won't enumerate again at this time.

Your language is extremely densely packed, so it's hard to work out exactly what you're saying here. But how is "choosing categorically to bear a disabled child" not functionally equivalent to "making choices that *may* lead to a damaged child" except that, in the latter case, the outcome is actually more likely to be positive (FAS is by no means guaranteed at any level of drinking, and appears to have both genetic and environmental trggers)?

[peterb]

I refuse to acknowledge that the rights of "the species" come before mine. It's that simple. My body, my choice. Others may make different choices, and that's fine too.

Indeed, your right to life, but you want to deny that right to something that cannot make that choice itself. Yet we regard ourselves as civilised because we seek to protect the weak and vulnerable.

Just seems an odd contradiction to me.

[b0redom]

The problem I have with this whole debate is, who decides what's appropriate behavior for a pregnant woman? Smoking is heavily frowned upon. Drinking to excess too, but what is excess? A glass of wine? A bottle? A beer? A 24 pack?

OK, alcohol and cigarettes are bad, what about cheese? Some of that is frowned upon.

Ok, no booze, no cigarettes, no soft/blue cheese, or caviar, or unpasturised products of any kind.

What about behaviour? Paula Radcliffe ran long distances whilst heavily pregnant. Most forms of even moderate exercise have inherent dangers.

I don't know what the answer is, and the case of FAS is really sad, but I'm not sure how you'd fix it unless you want to start strictly legislating the behavior of women who are pregnant.

b0redom (dad of 3).

[peterb]

We need to breed, yes. We can do that without treating women as walking incubators. Try to promote a foetus' rights over the mother's, and that's essentially what you're saying - "while you're pregnant, you're more important as an incubator than a person".

Those are your words and interpretation. A woman is no more or less valuable as - to use your words - an incubator whether she is pregnant or not. However, the physiological changes during pregnancy mean that she may not be able to do things that she could before (or after) the pregnancy. One of them might be drinking excessive quantities of alcohol. Procuring an abortion is still an offence under the 1967 act, so if she drank alcohol with the express intention of causing a miscarriage, that would be an offence, although one that would be hard to prove, as the case demonstrated. That is the legal position. The moral one is perhaps less clear cut, but that is an individual choice.

[scaryjim]

The problem I have with this whole debate is, who decides what's appropriate behavior for a pregnant woman?

I believe that's essentially the issue - some people seem to think it's for society/legislators to decide, purely because the woman is pregnant. That's why this appeal not being granted was important - because it gave a clear message that the UK legal system backs a pregnant woman's right to self determination, unless she acts with the intent to harm a viable child (yamangman posted the relevant quote earlier). I'm going to post a bit from my earlier comment which may have got lost in a variety of cross-posts, because I think it's very important in this discussion:

The question here isn't whether the mother is at fault for her daughter's condition (AFAICT that's not disputed), but whether she committed a criminal act. That's a much narrower, more specific question, and the law is very clear, including in its reasoning for the position; legally, the mother did not commit a crime. That doesn't say she wasn't responsible, just that her actions weren't criminal. It's an important distinction.

[scaryjim]

... the physiological changes during pregnancy mean that she may not be able to do things that she could before (or after) the pregnancy. One of them might be drinking excessive quantities of alcohol. ...

May not be able to? Or should not? This hasn't, so far, been a conversation about what a woman is capable of during pregnancy, it's been a conversation about what a woman should be allowed to do during pregnancy. I don't think anyone's arguing that drinking heavily during pregancy is a good idea, but it's something this woman was clearly capable of. There were consequences to her actions, but does that mean she shouldn't be allowed to make that choice? As you say, drinking with the intent to cause a miscarriage is already a criminal offence, so there is already a law dealing with this, and in this case it was decided that she wasn't guilty of that offence. Any further legislation towards making her actions a criminal offence would impinge on her right to make that choice. So are you advocating a broadening of the law and an eroding of her rights? I thought you were, but now I'm not so sure...

[TeePee]

Technical point, a foetus is always a human being. That's just a point of science.

That is, of course, incorrect. A human foetus is always human, in the same way that a severed finger or cancerous tumour is human tissue. But that is obviously not enough to define it as a human being. That question of what point in it's development a foetus can be defined as a human being is an issue for a discussion of Abortion. A Scientific definition of Human Being would begin brain birth, as an indication of the beginnings of individualism, that being a require trait of a human being. Something in the region of 22-24 weeks of gestational age.

Quoting recent religious dogma an claiming it is scientific fact hasn't worked well for you in the past.

[peterb]

I'm merely pointing out that in exercising her 'right' to choose, she is imposing the consequences of that choice on another biological entity, and one that has no say in the matter - which seems contradictory as we have a whole army of social workers ready to intervene the moment the child is born.

The law may currently state that the unborn child is not a legal entity, but the law is about - the law, not necessarily what is right, fair or just. Is it right that the unborn child should have less protection at the most vulnerable stage of its life than it does at any other time?

I don't know the answer - it isn't a question with a clear cut answer - but the present situation is contradictory. But if the protection of the law was extended, it raises as many other ethical and moral questions that it answers. As it stands, it comes down to a matter of conscience.