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Fetal Alchol Syndrome and the Law

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And the Law
An Annotated Bibliography

Jay Adams
2nd Year Law Student
 The University of Dayton School of Law
Spring 1998


The aspects and consequences of Fetal Alcohol Syndrome are a crucial issue in the analysis of community health. The abuse of alcohol by the mother while the mother is pregnant has long term effects on not only the mother and the child, but also on the community. The community is often forgotten in the analysis of the dramatic effects of Fetal Alcohol Syndrome. If there is going to be an approach recognized and accepted in our treatment of this problem, we need to weigh all of the aspects of this problem. Failure to do so will merely perpetuate the problem as it currently exists.

There are various views as to the causes, effects and solutions to Fetal Alcohol Syndrome. However, most of the acknowledged views on this subject fail to perceive or at least fail to give credibility to anything other than the effect that this problem has on the individuals directly involved in the matter. If we are going to rid ourselves of this problem, we need to begin to view Fetal Alcohol Syndrome as not just a personal problem that exists within various families in society, but a need exists to recognize this problem for what it really is; a problem for the health of the community at large.

One of the widely accepted and discussed views is the Medical Model view. Under this view, there is a primary, if not exclusive focus on the biological and psychiatric causes of the illness. This view fails to give the proper weight to the social, political and community aspects of the illness.

The particular failures of this approach are that it ignores the effects that this illness can and does in fact have on the development of the child in the community. It also fails to recognize that a mere encouragement of women not to drink during pregnancy is ineffective. The reasons that this approach of deterrence is ineffective are numerous. However, the primary failure of this approach is that it fails to recognize the external aspects and pressures of the social and community life that cause women to begin to drink. If this problem is going to be conquered, there needs to be a realization made that people do not just drink for enjoyment or out of selfish reasons. That there are external weights that cause this action to be undertaken as a release from the pressures of society.

When a woman becomes pregnant, the pregnancy may be just one of many factors that adds pressure to her daily life. To relieve these pressures, she begins to drink. As the pressure of pregnancy, coupled with the added societal pressures begins to mount, the use of alcohol turns into abuse of alcohol. All the time the woman is still carrying a child. As the pregnancy contuse so does the abuse of the alcohol. As the growth of the child continues so does the pressure of this impending birth, consequently so does the abuse of the alcohol. Ultimately, the child is born. The child has had no choice in the matter, and is by that born affected by Fetal Alcohol Syndrome.

This event is truly tragic. However, an additional tragic event is our societal continuance of the logic that we need to keep up the status quo. Keep doing what we are doing to prevent this and eventually it will work. This has failed.

Another approach, or lack of it, is the Individual Rights approach. This approach focuses on the right of the mother versus the rights of the child. We recognize individual autonomy in our society, and therefore, under this approach we are continuing our ambivalence to the overall effect that this illness has on our communities by perpetuating the problem through an ineffective reform method found in this model. People have a right to live their lives in a way that they see fit. However, at what cost to the community are we willing to recognize this autonomy?

Maternal Rights arguments are similar to Individual rights arguments in that we are, under this approach, supposed to be willing to recognize the rights of the mother no matter the cost to the rest of the community. Regulation of the mother during pregnancy under this approach is seen as intrusive and burdensome. Therefore, we continue to respect the rights of the mother and fail to do the same for the unborn child or the rest of the community.

In strict contrast to this view is the fetal right argument, which states that the rights of the mother are inconsequential to the right of the unborn child. This approach neglects to recognize the individual rights of the mother to any extent and cast mothers as merely the carrier of a child who apparently have no individual rights whatsoever.

The pressures of society and the impending pregnancy are the causes of the mother's drinking. This cannot reasonably be denied. However, why is it then that the views that are commonly accepted in society refuse to recognize these factors as legitimate. This is not to say that we want to grant mothers an excuse to drink. All we need to do at a base level is recognize the pressures in society that lead to the drinking. The existing approaches fail to do so.

As the various approaches exist, there is a total lacking of a compromise-type view. This view needs to be present. This view would undertake to examine and combat the effects that this illness of Fetal Alcohol Syndrome has on the community. The child born under this illness is prevented from upward mobility in society from the inception of birth. The child essentially starts with two strikes against it. The child has to be considered in the equation. This is not to say that the rights of the mother are to have totally discarded. However, at what cost, once again are we willing to recognize individual rights? The cost right now is too high to justify. Children born with Fetal Alcohol Syndrome will statistically be cared for not by the mother, but by the community. Therefore, the community should be able to at least in part, have a say in how the child is cared for while in the womb.

There is no reason that the interests of one should have to weigh more heavily than the other. The child and the mother can be protected, if we are willing to take the initiative to do something about the problem from a different view. However, as we currently exist in society, we would rather recognize the rights of one or the other and then once the problem exists, we perform damage control. Prevention is still a possibility. However, it is going to take the force of the community to initiate this change. The community has to initiate the difference. This is apparent from the failure of the present views to recognize both sides of the issue and come to solution.

The research annotated in this work will not discuss to a great extent a community-type approach. This should not be considered as a failure to support the proposed changes stated herein. This can be taken as further proof that this community view does not exist. The lack of information on an alternative approach is just as compelling if not more so than the proof as it currently exists. There will however, be information presented in the annotations that suggest that a different approach is needed to combat the pressures that lead to the existing dilemma which we face.

At the present time, the status quo is intact. Individuals are protected at the detriment to the community. However, the ultimate beneficial logic even to the individuals under the current approaches is tenuous at best. Are they really benefitted at the end of the day. Logic says they are not. If the approaches that currently exist were effective, we would have seen at least a minimal drop in the effects of this illness.

In light of the ineffective nature of our current systems used to combat this problem, a different approach should only be seen as a positive alternative. We need a change.

The following articles are included in this bibliography:
Combating Parental Substance Abuse: The State's Current Approach and the Novel Approach of Court-Ordered Protective Custody of the Fetus

Fetal Equality?: The Equality State's Response To The Challenge of Protecting Unborn Children

Fetal Personhood, Legal Substance Abuse, and Maternal Prosecutions: Child Protection or "Gestational Gestapo,"

Prosecuting Pregnant Women: Should Washington Take The Next Step?

Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and The Right of Privacy

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Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and The Right of Privacy, 104 Harv. L. Rev. 1419 (1991).

This article discusses many of the social and community inequalities that exist in our current society. The fact is presented that women of color often receive punishment in areas and for offenses that white women would not receive. This review presents the aspects of this from the perspective that the government has an obligation to black women and individuals in general to protect their individual rights, and thereby protect the community. The rights that would be protected are those that were spoken of in the introduction to this bibliography.

It is indisputable that women of color are subjected to prosecutions that white women would not be. This is because of the inherent problems with the justice system, as well as the fact that social, and economic inequality bring many more women of color in contact with public agencies that might lead to the detection of their substance abuse of their children.

In theory I agree with her that the individuals in these circumstances should be protected regardless of color. This is not the point at which we disagree. Where the problem arises is that the jump to the fact that if we protect all people equally by respecting their individual rights then we are protecting the community. I see this logic as fatally flawed in that if we allow these individuals to act as they please while pregnant with no consequence being considered to the child then it is actually the community that is damaged, through the almost certain damage that will be suffered by the child. [Back]

Allison M. Leonard, Fetal Personhood, Legal Substance Abuse, and Maternal Prosecutions: Child Protection or "Gestational Gestapo," 32 New Eng.L.Rev. 615 (Winter 1998).

This article makes a critical analysis of the approaches that we now take in our criminal court system to punish women who abuse substances, including alcohol which leads to Fetal Alcohol Syndrome. The argument made by the author is that we need to take a case-by-case approach to these problems. She recognizes and gives credence to the individual rights argument as well as the fetal rights argument. She discusses the community and the effects of Fetal Alcohol Syndrome on the community. However, this is where the analysis stops. Her approach is merely that we need to be more educated about the topic of substance/alcohol abuse among pregnant women and the effects that this can have on our children.

Education is a great start. However, the author fails to take the next critical step and propose an actual community initiative to solve the problem through a recognition that the community is the one who suffers from the effects of this illness. The community is the one picking up the tab for individual rights, whether those be the rights of the child or the mother.

That step of recognition is necessary to improve the current condition of Fetal Alcohol Syndrome. Additionally, I cannot agree with the case-by-case analysis. This will lead us down an a more drastic slippery slope than the one that currently exists. The community, and it's interests have to be considered. However, simple attempts at education are not enough without an initiative to back them up. [Back]

Amanda E. Vedrich, Prosecuting Pregnant Women: Should Washington Take The Next Step?, 21 Seattle U. L.Rev. 133 (1997).

This article discusses the impending situation in the state of Washington as to what the course of action should be in the fight against Fetal Alcohol Syndrome. The author takes the position that the state needs to enact legislation to take care of the problem by allowing the prosecution of women who intentionally injure their children through the use or abuse of alcohol. This article makes the assumption that when a woman drinks during pregnancy that the act which invariably results in the injury to the child is intentional or at least knowingly done.

The author discusses the substantive arguments on both sides of the issue. These arguments are taken from the side of the mother, which the author does not recognize as valid, and the rights of the child, which the author adopts. The author implicitly argues that the rights of the child intertwine with the rights of the government of the state of Washington to interfere with the mother's autonomy rights and prosecute her for her actions against the child who is unborn.

I am not going to pass judgment her personal views on the topic. However, along with a majority of the authors on this topic, the author does not recognize the fact that it is the community who is at danger as well as the child. And that it is only through a compromise that the rights and well being of both of those entities, as well as possibly the mother can be protected. [Back]

Cynthia L Glaze, Combating Parental Substance Abuse: The State's Current Approach and the Novel Approach of Court-Ordered Protective Custody of the Fetus, 80 Marq. L. Rev.793 (1997).

This review takes the position that there is an alternative which exists that would allow the state, through it's prosecutors to bring charges against a mother who abuses her child through substance abuse. This charge would effectively make the child a protected individual by the state protection agency and thereby supposedly protect the child from the danger of the substance abuse from the mother.

While in theory this may be effective. The burden that this would further place on the community and the state would be immense. This author additionally fails to recognize the fact that the government and the community who support it are the ones who suffer the burden to bear in this type of situation. This would only effectively further the community negative effect of the current approaches to the protection of either the child or the mother's rights. [Back]

Stacey L. Best, Fetal Equality?: The Equality State's Response To The Challenge of Protecting Unborn Children, 32 Land & Water L. Rev. 193 (1997).

This review takes special note to describe the abusive effects that alcohol can have on children. The author states the various physical and mental problems that drinking while pregnant can cause the child. This is not in dispute. It cannot be argued the drinking while pregnant is beneficial to the child. This argument is fundamentally flawed. Therefore, the problem exists, what do we do to remedy the problem?

The author focuses on the criminal aspects of punishing these women for their substance abuse while pregnant. The author further points out that there needs to be an understanding of the reasoning behind the drinking of women while pregnant. This as well is not in dispute. It is clear that there are social pressures that cause women to feel the need to abuse alcohol during pregnancy. However, once again, this author does not take the next necessary step and conclude that the community is at risk and needs to take affirmative action in controlling this blight on their interests. The author's failure shows that this interest of the community is not one that is considered in these types of articles. This review essentially criticizes the current system without offering what I feel is a viable alternative. [Back]

Jay Adams is a second year Law Student at the University of Dayton School of Law. He is a graduate of Franklin College of Indiana in 1996, with a Bachelor of Arts degree in History. Upon completion of his law degree, he intends to practice law in criminal defense.

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