Should Pregnant Women Be Punished For Exposing Her Fetus to Risk

Pregnant women at times engage in activities that may affect the well-being of the unborn child in one way or the other. The question that then arises is whether pregnant women should be punished for exposing their fetus to any form of risks during the pregnancy term. For as long as anyone can remember, law enforcement authorities, judges and elected officials sought to punish women for all actions that they took during their pregnancy that may directly affect the well-being of the fetus before birth (Janet 10-14). Most of the dangers posed to the fetus arise from women who fall in the categories of women who use drugs or suffer from substance abuse. In most cases, these women are committed to civil jail for their actions at the time of pregnancy or for the new mothers who are likely to lose custody of their children even after delivery.
The motivation for such action is the misguided belief by the supporters of the promotion of fetal rights as separate from that of the mother whose rights are deemed separate from that of the fetus. Women’s and child rights sponsors approve that women should involve themselves in behaviors that positively endorse the birth of healthy children. However, these supporters also recognize that substance or drug abuse by the woman should be addressed in a constructive manner as the adoption of corrective measures against such women eventually affects the well-being of the mother and the child. This informs the decision of public health officials not to treat pregnant mothers with reproductive problems as criminals. Courts have also endeavored not to punish such women under existing criminal justice systems especially when the right of the fetus poses a significant threat to the reproductive rights of the woman. For example, in the US, the Supreme Courts of Florida, Kentucky, Nevada, Ohio and Wyoming have held that criminally prosecuting women for conducts during pregnancy is unconstitutional and lack any legal basis (“Punishing Women for their…” 2).
According to Marmor (13), the law is all the time flanked by moral considerations that leads us into a temptation to ground the law on moral-ideological considerations due to its normative character. Therefore, it is important to ask ourselves whether doing a certain act as prescribed by the law or what a particular law counts as a legal requirement depends on what is good or morally required. Similarly, the conduct of women during pregnancy is affected by considerations bordering on the law and moral considerations.
Pregnancy is a life changing event in which the woman becomes more protective, caring, and nurturing in most cases. Once pregnant, the woman must eat healthy, get plenty of rest, exercise, and avoid stress. Many types of the conduct of women during pregnancy can harm a fetus in several ways that lead to physical or mental abnormalities in the child. Medical researchers have found that smoking, when a woman is pregnant, may lead to defects in the development of the fetus. For example, low birth weight that may cause severe health problems and infant mortality, and that drinking alcohol during pregnancy may lead to fetal alcohol syndrome that leads to mental retardation, growth deficiencies before birth and after birth and facial abnormalities. Some drugs can directly impair the development of body organs and systems of the baby that are usually formed within the first ten weeks or so of pregnancy. At this stage, certain drugs may damage organs that are still developing, such as the eyes and the nervous system. A woman’s conduct during pregnancy that may ultimately affect the state of the unborn child may also include the failure by the pregnant woman to obtain prenatal care, or proper nutrition that may have a negative effect on the life of the fetus. Also, a woman’s conduct during pregnancy may also increase the risk of miscarriage and premature delivery.
Therefore, in order to allow the state or the criminal justice system to subject pregnant mothers to criminal liabilities for engaging in all sorts of behavior during pregnancy would be subjective in that many mothers will be held criminally liable for engaging in both legal and illegal activities as at the time of pregnancy.
It is important to note from the onset that prosecuting women for any form of behavior during their pregnancy affects their right to privacy that includes a decision as whether to have a child or not and the right to the respect of the human body integrity. Research has found that criminally prosecuting women for engaging in activities that may be harmful to the well-being of a child may compel them to obtain abortion in order to evade arrest. The Florida Supreme Court has stated that prosecuting pregnant women for their behavior during pregnancy does not bode well for the future of the child nor that of the mother, but endangers both as criminal prosecution separates women from the healthcare system posing great danger for the better health of both.
On the other hand, opponents of punishment of pregnant women who engage in conduct that may be harmful to the fetus argue that the arguments are not made to suggest that pregnant women should not be held responsible for their actions while pregnant or that they are not able to make choices out of free will. Rather, they propose that what should be deemed as acting responsibly by the society has to be modified with a comprehension of what the pregnant woman always comes across such as a relapse in addiction as a chronic disease. Therefore, the society must put in place programs for women and children, especially those for drug-addicted women that can allow them to confront their addiction to inappropriate conducts and problems that eventually guarantees the well-being of the child and the mother. Medical experts and women’s and child rights advocates agree that such an approach leads to the overall improvement of the health of the born and unborn child and the mother as opposed to punishment and blame. Opposing of the recognition of a fetus as a full human does not deny them the value or importance that accrues as life but by opposing such an argument may have consequences for the woman, the child, and the hope of equality within the eyes of the law. The problem of treating a fetus as a different person is that the pregnant woman will not cease to be a less equal person, but they end up becoming non-persons according to the law.
The result of the above argument is that prenatal protection of the unborn child should not trump on the constitutional rights that accrue to the child, as the recognition of this right at times present an impermissible conflict between the rights of the pregnant woman and that of the fetus. The fetus exists only because of the mother and therefore if the rights of the fetus go against that of the health of the mother it can create a conflict that results into a situation when the mother’s life is put at risk just to protect the unborn child. This mostly occurs when an abortion is considered as an option. Therefore, the US Supreme Court has affirmed the right of a woman to life and health over that of the fetus when that right seems to be threatened. In Roe v Wade, 401 U.S. 115, 157 (1973) the courts held that a woman’s right to procure an abortion outweighed the rights that accrue to a fetus that has been found to be non-viable and therefore the state cannot interfere with the conduct or the decision of such a woman.
In order to justify the legalization of abortion when the constitutional rights of the woman are likely to be trampled upon by those of the fetus, opponents of punishing women who have sought an abortion used the Harm Principle as a limit in the enforcement of moral rights and standards. The argument is that to criminalize abortion would be detrimental to a woman when her rights are at risk of being trampled upon by the unborn child as abortion would enable her be in control of her reproductive system (Garfield 160).
However, the South Carolina Supreme Court in Whitner v South Carolina, 492 S.E.2d 777 (1997), cert denied, 523 U.S 1145 (1998), upheld the prosecution of a woman for her behavior during the course of her pregnancy as according to the court, the fetus was deemed to be a child under the state’s criminal child endangerment statute. The court therefore stated that any act behavior of a pregnant woman whether legal or illegal that would potentially affect the health of the fetus could be the basis for criminal child endangerment (“Punishing Women for their…” 4). According to Toal (Levine 154-159), on April 2, 1992 the Supreme Court of South Carolina had a case against Cornelia Whitner who was sentenced to eight years in prison for endangering the life of the fetus. In regards to the Children’s Code, the fetus has right to life, health, and comfort. Whitner pleaded guilty for child neglect for abusing cocaine in her third trimester that caused her baby to be born with cocaine metabolites in its system. The South Carolina Court recognizes the fetus as a “child” entitles to rights and used the children’s code law to convict her. The court also ruled that they did not violate defendant constitutional rights because they were protecting the fetus since in this case the child well-being comes before the mother respect of privacy.
Although there is no law for fetus abuse, woman have been arrested and prosecuted in more than thirty states for testing positive to any of the illegal drugs or alcohol. Since 1989, in Charleston, South Carolina the law enforcement and medical facilities teamed up to punish addicted pregnant woman instead of creating drug programs to help these mothers-to-be. Before the Supreme Court of South Carolina took action, Under the United State criminal law the mother was the only one with rights, she was the major decision maker and a person has to be born to have rights. We are a liberal society and according to liberalism, a woman’s body is her property and pregnancy is considered a private matter. The rights-extension argument supports the punishment of the mother who exposes her fetus to risk by extending the right to the unborn child. This argument states that if a pregnant woman uses harmful substances she ought to be treated like a criminal because of the harm done to the fetus. The supreme court of South Carolina’s ruling about what a pregnant woman is allowed to do and it is also made pregnancy as a public issue instead of keeping it as a private matter.
In the above stated case, the state affirmed its interest in protecting the life and health of a viable fetus as that which is compelling and not just legitimate. Therefore if the state wished to enact any punishments on pregnant women who gets involved in unlawful behaviors such as drug and substance abuse that has an influence on a viable fetus, it would be free to do so. In concluding this case, the court affirmed that the imposition of an additional punitive action on a pregnant woman with a viable fetus engaged in a proscribed conduct does not burden the woman from carrying the pregnancy to full term. Rather it was meant for the recognition that the behavior harms the third party who may be the unborn or a born child.
Most public health organizations such as the American Medical Association and the American Public Health Association are not in support of pregnant women who use or abuse substances and drugs. This is because they argue such an approach would undermine the health of the fetus and that of the mother, as it would deter the mothers from seeking antenatal care for fear of losing their children or arrest (Brown 79).
In conclusion, it is really hard to take sides regarding most controversial issues such as this one. My stance is that, when there is an issue, the best remedy is for both sides to meet somewhere in the middle. However, some may not have the means or education to do so. Disciplinary approaches to the conduct of women during their pregnancy, for example, substance and drug abuse, have an impact of directly infecting the health of women and the child, both born and unborn as it lessens the mother’s right to privacy. These approaches also ignore the often inaccessibility of the treatment programs for such conduct and the reproductive services. This therefore calls for the policymakers or stakeholders concerned in the well-being of the unborn child and the mother to find better ways of addressing the problems or needs of these pregnant women who may be involved in conducts that hurt the well-being of the fetus, such as drug and substance abuse. Also, making sure women are aware, by educating them, of the serious punishment for harming a fetus or using drugs has a negative effect on the fetus’s or child’s growth and/or future is the key. Bibliography
Brown, Sarah S. Prenatal Care: Reaching Mothers, Reaching Infants. Washington, D.C: National Academy Press, 1988.

Punishing Women for their Behavior during Pregnancy: An Approach That Undermines Women’s Health and Children’s Interests. Centre for Reproductive Rights. September 2000. Web. 1May 2013

Garfield, Jay L, and Patricia Hennessey. Abortion, Moral and Legal Perspectives. Amherst: University of Massachusetts Press, 1984.

Janet, Gallagher. Prenatal Invasions & Interventions: What’s Wrong With Fetal Rights, 10 Harv. Women’s L.J. 9, 10-14 (1987).

Marmor, Andrei. Philosophy of Law. Princeton, N.J: Princeton University Press, 2011.

Levine C. Taking Sides: Clashing Views on Bioethical Issues, 14th Edition, Issue 8, 152-169

Bibliography: Brown, Sarah S. Prenatal Care: Reaching Mothers, Reaching Infants. Washington, D.C: National Academy Press, 1988. Punishing Women for their Behavior during Pregnancy: An Approach That Undermines Women’s Health and Children’s Interests. Centre for Reproductive Rights. September 2000. Web. 1May 2013 Garfield, Jay L, and Patricia Hennessey. Abortion, Moral and Legal Perspectives. Amherst: University of Massachusetts Press, 1984. Janet, Gallagher. Prenatal Invasions & Interventions: What’s Wrong With Fetal Rights, 10 Harv. Women’s L.J. 9, 10-14 (1987). Marmor, Andrei. Philosophy of Law. Princeton, N.J: Princeton University Press, 2011. Levine C. Taking Sides: Clashing Views on Bioethical Issues, 14th Edition, Issue 8, 152-169