Should parents be held liable for preventable birth defects?

Every year, thousands of babies in the United States are born with birth defects, some of which were preventable with proper prenatal care. However, due to misinformation, physician negligence, or parent decisions to ignore medical advice, proper prenatal care is not always possible.

One of the most common causes of preventable birth defects is the consumption of drugs during pregnancy. Fetal Alcohol Syndrome (FAS) may result if excessive amounts of alcohol are ingested by the mother prior to birth. Oftentimes, drug consumption occurs during pregnancy despite medical warnings of the consequences. This poses a difficult question: should parents be held liable for preventable birth defects?

The first thing to take into consideration are the rights - or lack thereof - of the fetus. A fetus itself is not yet considered a 'person' and thus does not have rights; however, once born, harms done in-utero have clear negative impacts on the life of the child. It is also important to consider that acknowledging harm done to a fetus as legally punishable may have implications for the contentious issue of abortion.

Second, we must decide whether legal repercussions would unfairly infringe upon maternal autonomy. When dealing with pregnancy, the mother is considered the primary patient, not the fetus, and medical decisions are ultimately made by her. Furthermore, controlling what substances a mother intakes during pregnancy is akin to controlling her body. Some women who heavily consume alcohol during pregnancy may also have an alcohol use disorder and require assistance rather than legal backlash.

This issue is invariably segregated along gendered lines as well. While a pregnant woman consuming alcohol may directly impact fetus health, is a father who drinks heavily and encourages a pregnant woman to do so not also to blame? Criminalizing alcoholism during pregnancy will disproportionately punish women with no justifiable reason to prosecute men for similar actions.

Further complicating the issue is the existence of successful lawsuits against businesses that impose environmental harm on fetuses. If there is sufficient proof medication, food, or other products cause birth defects (and did not give adequate warning), those affected can sue the businesses. Thus, there has been precedent for imbuing legal consequences on harm conducted in-utero on the macro-scale level, but not yet the individual level.

One of the most pressing issues is the slippery slope that would arise from criminalizing legal drugs during pregnancy. For instance, there are many actions that doctors recommend against during pregnancy that are neither illegal nor universally result in birth defects. Excessive exercise, consuming raw food, traveling to certain areas, drinking caffeine, and engaging in other risky activities may negatively impact a child. However, criminalizing these actions as well would be overstepping constitutional rights in a manner reminiscent of a dystopian society.

If you're interested in reading more, this article in the journal bioethics explores this issue in greater depth.