By Mhairi Cowden
Crawford School of Public Policy, Australian National University
A recent study, undertaken by the Lililwan Project, found that 50% of 8 year old aboriginal children attending school in the Fitzroy Valley have signs of Foetal Alcohol Spectrum Disorder (FASD). FASD is more widespread than many imagine. It is referred to as an ‘invisible disability’ as it often goes undetected. In order to address this, the Northern Territory Government is currently considering a proposal to introduce legislation allowing criminal prosecutions of pregnant women for drinking.
The proposal is interesting as on the one hand there is clear and strong evidence that high alcohol consumption while pregnant leads to lower development outcomes in children, on the other hand prosecuting women for something the rest of society regularly abuses seems to be a rather large step. The kicker is that the Northern Territory proposal is framed with reference to the rights of the unborn child. Attorney-General John Elferink told the ABC’s Lateline that they were looking to ‘either prosecute or alternatively restrain [women] from engaging in conduct which harms their unborn child’. This proposal therefore raises some thorny theoretical problems about whether an unborn child, or more accurately, a foetus, can hold a right not to be harmed – with some pretty heavy abortion arguments thrown in to boot. However, it also raises questions about when and how we should invoke rights to achieve public policy outcomes.
Why Children have Rights
Understanding the basis for asserting that children have rights is central to examining the question of whether a foetus can hold rights. Even the statement ‘children have rights’ is contentious. For some rights theorists, children cannot hold rights because they do not have the requisite capacity to enforce those rights or the freedom to choose how they will exercise them. For example, I have a right of exclusive possession over my car that produces a corresponding duty in others not to use my car, however this right is only meaningful because I can exercise choice. I can choose to lend the car to my friend, therefore waiving the claim to exclusive possession temporarily.
Rights are important according to these theorists as they allow us to exercise freedom of choice and thereby to shape our own lives and projects. Children, especially young children, cannot meaningfully exercise freedom of choice, therefore they cannot hold rights. We may still hold certain duties towards children to protect them, but these duties are not borne from rights. According to this account if young children cannot hold rights then certainly a foetus cannot hold rights. Therefore any reference to a ban on drinking while pregnant that relies on the foetus’ right not be harmed cannot be substantiated.
There are, however, alternative conceptions of children’s rights. Interest theory argues that children hold rights because they have interests that are sufficiently important to ground claims imposing duties on other people. For example, children have rights to adequate nutrition as they have interests in receiving the nutrition they need to survive. According to interest theory, children’s lack of capacity to make meaningful life choices does not mean that they do not hold rights at all. Instead the enforcement and delivery of rights can be exercised by others on behalf of the child. Under this theory we may begin to build an argument for a foetus holding a right not to be exposed to alcohol in utero. The damage caused by a pregnant woman’s alcohol consumption is certainly high, and the interest that all children have in good health and development prospects may be considered important enough to impose a duty on pregnant women not to endanger the life prospects of their as yet unborn children.
Future People and Rights
But while it may be theoretically possible for existing children to hold a right not to be exposed to alcohol, we need to ask whether a foetus is capable of holding rights. There are actions we can take towards the foetus, such as drinking, smoking or taking illicit drugs that are harmful and there are actions we can take such as eating well, exercising and staying healthy that are beneficial and therefore in the interests of the foetus. Does this mean that these interests ground rights? Or indeed that a foetus is the type of being to hold interests? The fear here is that ascribing rights to a foetus would lead to these rights coming into direct conflict with a woman’s right to access abortion. For if a foetus has a right not to be exposed to alcohol, surely it also holds a right not to be aborted.
In response to this particular theoretical quandary, Julian Savalescu has argued that it is better to legislate not by reference to the foetus’ interests but with reference to the future interests of the child. In this case it is not that the alcohol is harming the foetus now, in utero, but rather that by consuming alcohol a pregnant woman harms the interests of a future child. By this argument, abortion is not harming a current person but preventing a future person from coming into existence, in the same way that taking contraception prevents a future person from coming into existence. A person who has not come into being cannot be a rights holder. Existing children, however, have an interest in not suffering from FASD and therefore pregnant women should take steps to protect the future interests of their children.
Deep breath – got all that? This is a fairly complex piece of theoretical sidestepping and one that may not make immediate sense to those simply looking to reduce the number of FASD babies. It also seems to be missing the point. Instinctively we still want to say that harm is not magically done to a child the minute it is born, harm is done in utero. Perhaps there is a way to articulate the problem that recognises drinking while pregnant will have negative consequences if the pregnancy is brought to term but which also acknowledges that abortion is a morally defensible choice. If so, it would seem to point us in the direction of concluding that rights are not the ‘right’ type of language for this problem.
Rights as Public Policy Tools
Let us be honest here – what we are dealing with is a public policy question. The government is considering how to stop women from drinking while they are pregnant in order to reduce the number of children that are born with FASD. Resorting to rights as a way to achieve this public policy outcome seems ill conceived for the purpose. Even if we are able to theoretically defend a right held by a foetus not to be harmed in utero; recognition of this right will not guarantee its realisation. Rather, it punishes the duty holder (in this case the pregnant woman) for failing to fulfil the duty that correlates to the right. Exposure to alcohol in the first trimester is the most debilitating for foetal development. It can affect organ and craniofacial development, and produce cardiac and structural brain abnormalities. One imagines that once a successful prosecution of the pregnant woman has been pursued the damage to the foetus has already been done. The only value in ensuring a foetus’ right is respected therefore lies in prevention.
It might be argued that criminalisation will act as a deterrent, however this is unlikely given the complex historical, social and individual issues associated with drinking and addiction. Understanding why women drink alcohol while pregnant and providing them with the support they need to make the choice to stop drinking early in their pregnancy is the only feasible way to actually prevent harm to the foetus.
A better way to conceptualise this problem is therefore to side-step talk of rights completely and instead to consider our duty to prevent foreseeable harm. For example, we have a duty not to drive a car while drunk. This is not because when we get in the car we are immediately harming someone. It is because there is a high likelihood that engaging in this behaviour will lead to harm and we have a duty to avoid preventable and foreseeable harm and to refrain from risky behaviour. This duty does not need to be based on the rights of others.It is similarly the case that drinking while pregnant, especially binge drinking and drinking frequently, is risky behaviour involving foreseeable and preventable harm. Engaging in risky behaviour when you intend to carry a pregnancy to term is a different kettle of fish, morally speaking, to choosing to have an abortion.
Rights are a powerful public policy tool but not one that works in every environment. In some cases rights muddy the waters rather than bring clarity. By doing so, they lose the very potency that draws people to rights language in the first place. For those of us who have made a career in examining, explaining and advocating for rights, it is a worrying conclusion to draw that sometimes when a right is theoretically identifiable its recognition may not be the correct approach in a public policy environment. This is a politically, emotionally and morally charged area and if public policy outcomes can be achieved without playing the rights card, we should choose to save that card for another round.