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English Translation of Elselijn and Fiona's op-ed in a Dutch Newspaper

In this article Elselijn and Fiona argue against Dutch proposals to increase powers for government intervention on pregnant women who smoke or abuse other substances.

 

Nobody likes to see a pregnant woman smoking. Every child born with a drug-addiction or with Fetal Alcohol Syndrome (FAS) is a tragedy. But we must be very careful before we increase powers for government intervention on pregnant woman, as has recently been proposed by a Dutch Advisory group. These measures include making pregnant woman or their unborn children wardens of the state; compulsory hospitalisation; and even compulsory treatment.

 

Our research investigates the ethics of the mother-fetus relationship. This is a complicated question, because this relationship is unique. The fetus is not physically separate. This means that our normal moral and legal analysis, which is based on the interaction between physically separate individuals, cannot be directly applied.

 

First, because to bring about harm, one person must normally actively interfere with another; the mother of a newborn, for example, could harm her child by putting whisky in its bottle. The fetus of an alcoholic pregnant mother, by contrast, suffers damage merely as a side effect of the mother's self-directed behaviour. This means that the pregnant woman who smokes or drinks is no different from the non-pregnant parent who gambles away the family budget; who loses his job through addiction; or who is absent and does not contribute, not even financially, to the raising of her children. In these cases children can also suffer great harm.

We condemn harm that is such a 'side effect' – or that is ‘merely allowed’ – much less severely than similar harm that is actively and directly brought about, e.g. through violence or abuse. Pregnant women who display sub-ideal behaviour are therefore not comparable to parents who abuse their children, but should be compared to, and equally judged and treated as, we do those who cause harm to their children as a side effect, or merely allow such harm.

 

Second, we are too easily inclined to overlook what every pregnant woman already does to benefit her child: with every breath she takes she grows, cares for and protects her unborn child. Even the smoking mother does this. Perhaps not perfectly, but she still does it. Pregnancy is work – hard work. Work that people may rightly refuse when it is first asked of them, and many will never have to perform. We think that parents who plan to carry their unborn child to term do have parental obligations to the future child that their fetus will become. We also think these obligations can begin before birth. But this does not mean that the state can require perfect parenting; only a reasonable effort. Pregnant women, merely through being pregnant, already do an awful lot for their unborn future children. And what, precisely, can be reasonably required from parents will vary an awful lot with context. What can be reasonably required in a stable family environment is quite different than what can be reasonably required in the context of addiction, domestic violence, or the threat of poverty.

 

Third, it is difficult to morally compare the behaviour of pregnant women to that of non-pregnant parents because the former are much more limited in their options than the latter. Non-pregnant parents can safely get drunk – as long as they provide a baby-sitter. The pregnant woman does not have that option. Either she does not smoke – for nine months – or the fetus smokes too.

 

All this does not mean that we cannot condemn sub-ideal parenting behaviour in pregnant women. But it does require that we consider carefully whether we are we are making the right comparisons before we do so. That care is presently absent. Take smoking. There is an awful lot of discussion about smoking pregnant woman, far less about parents who smoke in the vicinity of born children. But those latter parents have an easy option; they can smoke outside. The pregnant parent cannot.

 

It is very sad when an early life is set back before it is even born. But it is also dreadful that one in four women is the victim of domestic abuse, and that in 30% of cases that abuse begins during pregnancy. Nonetheless the state does not place webcams in our homes, or chips in expectant fathers. Why? Because a just state needs to balance (1) the protection of individuals against each other, and (2) the protection of individuals against the state. In pregnant women, we are too often inclined to lose sight of that latter demand. The physical unity of fetus and pregnant woman means that intervening on the latter in the name of protecting the former is necessarily a profound violation of the mother’s personal freedom, privacy and civil rights. The fetus cannot be forcefully separated from the mother without, literally, cutting her open. And controlling what she inhales and ingests – let alone forced treatment or deprivation of liberty – is a profound interference by the state of her most intimate and basic human freedoms, and a far-reaching abuse of the powers of the state.

 

What we should do is give pregnant women all the support they need to make better behavioural choices – but only voluntarily. Where it concerns mentally competent pregnant women we draw an absolute line when it comes to detention, forced treatment, threats and coercion. The Dutch advice is undoubtedly intended only for the "most extreme cases”. But because the moral analysis of the mother-fetus relationship is so difficult, and because we tend to judge pregnant women much too quickly and much too harshly, it is very unlikely that such a narrow restriction is feasible. As the public debate already exemplifies, the rights and personal freedoms of far too many pregnant women are threatened by the present proposal.

 

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