Personal Injury, Serious Injury & Clinical Negligence

Foetal Alcohol Syndrome – When do Human Rights begin?

The recent Court of Appeal decision in CP (A child) v First-Tier Tribunal (Criminal Injuries Compensation) (British Pregnancy Advisory Service/Birth Rights and another intervening) [2014] ECWA Civ 1554, concern the issue of whether or not an unborn foetus should be considered a legal entity in its own right, with corresponding legal rights, and therefore able to claim criminal injuries compensation from the Criminal Injuries Compensation Authority as a consequence of subsequently being born with foetal alcohol syndrome, and the resultant injury and losses that flowed from the symptoms.

Central to the issues facing the Court of Appeal was the question of whether or not an unborn foetus was capable of being a person, as distinct from its mother, and as such capable of being a victim of injury within the meaning of the Offences Against the Person Act 1861.

Section 23 of that Act states that:

“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such a person, or so as thereby to inflict upon such a person any grievous bodily harm, shall be guilty of felony…..”

The Court accepted, firstly, that the mother had certainly drunk excessive amounts of alcohol during her pregnancy, it also accepted that such alcohol could be regarded as a poison, or “noxious thing” as described in the Act. However, could the unborn foetus be regarded as falling within the description of “any other person”, distinct from its mother?

The Court of Appeal said not. The Court reaffirmed earlier decisions that concluded that a foetus was generally not capable of being regarded as a person independent of its mother, and it therefore followed that the mother had not committed a criminal offence, and the child, once born, had no right of compensation from the CICA.

The Court noted that Parliament had pointedly chosen not to criminalise excessive consumption of alcohol during pregnancy, and that therefore the Courts should be reluctant to interpret general criminal law in such a way as to effectively criminalise an activity that had previously not been so criminalised through statute.

The wider interpretation of the decision appears to reinforce the position that an unborn child cannot sue their mother for compensation for acts or omissions committed during pregnancy that affect the child after birth.