The Mother of All Crimes: Human Rights, Criminalization and the Child Born Alive.

Vol. 14 No.11 (November 2004), pp.889-892

THE MOTHER OF ALL CRIMES: HUMAN RIGHTS, CRIMINALIZATION AND THE CHILD BORN ALIVE, by Emma Cave. Burlington, VT: Ashgate Publishing Co., 2004. 172pp. Hardback. $84.95 / £47.50 ISBN 0-7546-2366-1.

Reviewed by Rhonda L. Callaway, Department of Political Science, Rochester Institute of Technology, Rochester, NY 14623, E-mail: rlcgsm@rit.edu

What should the appropriate response of a government and criminal justice system be to pregnant women who cause harm to their child born alive? Whose interests prevail, the pregnant women or the future child? Should the “bad” conduct of pregnant women be criminalized? These and other questions are addressed by Emma Cave in THE MOTHER OF ALL CRIMES: HUMAN RIGHTS, CRIMINALIZATION AND THE CHILD BORN ALIVE. Cave argues against the criminalization of the acts or omissions of pregnant woman that ultimately harm or kill the fetus or the child born alive. She contends that this would be a violation of a woman’s autonomy and human rights, as well as be inconsistent with the tenets of criminal justice theory. She develops an argument that pregnant women would be better served with additional education and treatment opportunities in lieu of prison or jail time for acts or omissions deemed immoral and more importantly illegal by society. Many of the women that are imprisoned originally attempted to seek help for the addiction or habit that ironically ends up injuring or killing the fetus. These women tend to be poor, uneducated, and are overwhelming minorities. Ultimately Cave seeks to convince the reader that criminalization is the wrong approach in addressing the harm or potential harm inflicted upon the fetus by pregnant women, and that education and treatment should be pursued as alternatives. Comparing court cases in the United States to those in England and Wales, the author worries that the latter will follow the troubling trend established in the United States toward criminalization.

The introductory chapter lays the groundwork for the arguments presented by Cave. There are three different interests represented in the debate: those of the pregnant woman, the state’s interest in protecting the fetus, and in many cases the rights of the child born alive. Cave outlines the current laws in the UK and the US, where both have established crimes dealing with the latter group. These “child born alive rules” fall into four categories. One category includes a third party who does harm to a fetus which is later born alive, but then dies due to the injury. This rule is applied in both the US and the UK. A second crime derived from the born alive rule is where a mother has given birth to a live child who then dies as a result of some acts or omission during pregnancy. This crime is exclusive to the US. In fact, Cave points this out as one of the concerns facing the UK—i.e., whether the UK and Wales should follow the US lead down this particular slippery slope. A third crime is similar to the second, occurring in a situation where the baby suffers a non-lethal injury due to the acts or omissions of the mother during pregnancy. The last crime, and perhaps [*890] the most controversial, involves harm resulting in the child’s death in utero. In these cases, the viable fetus test is usually employed, a fact which in itself sparks controversy and debate. Cave is most interested in the cases where the pregnant woman’s rights conflict with the state’s duty to protect the fetus or the child born alive.

Thus, one of the foundations of the debate on criminalization of such behavior rests on the status of the fetus, which Cave tackles in Chapter One. The question addressed here centers upon the appropriate balance between the rights of the pregnant woman and the state’s interest in protecting the fetus. While the author admits that this involves not only a legal question, but a moral one, she attempts to focus on the “appropriate legal response to the need to protect the fetus.” At issue is the autonomy of the pregnant woman. The concept of autonomy is really the root of Cave’s argument that the state should err on the side of caution—that is, in the woman’s favor. However, although the concept of autonomy is introduced here, it is not fully discussed until the next chapter. Of course, one can make a chicken or the egg argument about the order in which we should consider the status of the fetus and the autonomy of the child. The circular nature of the dilemma is often mirrored in the presentation of the arguments and material. Thus, there is a great deal of redundancy as one weaves through the chapters. Nonetheless, the discussion of the status of the fetus focuses primarily on two opposing perspectives. First, there are the rights of a pregnant woman to reject any intervention by the state based on her autonomy, and second is the perceived state duty to protect the unborn and potential child by curbing or limiting the mother’s autonomy. These two perspectives lead to a determination of whether the fetus has rights from a legal perspective. This, in turn, starts one down another slippery slope, determining when life begins, thus merging the moral with the legal.

Turning to autonomy of women, Cave utilizes a Dworkian definition placing an emphasis on procedural rather than substantive autonomy. The key is in the practical and legal aspects of autonomy, not necessarily autonomy from a theoretical perspective. In Cave’s view, autonomy should be the starting point to determine pregnant women’s rights vis-à-vis the fetus. “It is thus argued that the duty of the state to respect an individual’s autonomy by withdrawing interference with his competent choices is greater than the duty to act positively to his benefit” (p.28). Cave is concerned that, because third parties have already been found guilty of endangering, harming, and killing a fetus, it would not be that difficult to extend the law to apply to pregnant women as well. By relying on the concept of autonomy, Cave suggests that this particular slippery slope can be and should be avoided.

Concern for violation of such autonomy is expressed by comparing cases in the United States with similar ones in the United Kingdom and Wales. Considering that the UK and US have similar common law origins, Cave believes that the United Kingdom might follow trends occurring in the United States, extending the protection of fetal rights and thus criminalizing certain actions of pregnant women. Cave contends that acts or omissions by [*891] pregnant women are difficult to fit into the three elements that constitute a crime. According to criminal justice theory, a crime consists of a culpable act (actus reus), an accused with a culpable state of mind (mens rea), and the defendant must have caused the relevant harm. It is the latter two elements that become problematic when attempting to criminalize acts of pregnant women. Indeed, what standard is to be imposed? How can courts determine the exact behavior that might have caused damage or death to the fetus? Here Cave focuses mainly on instances of substance abuse, and in particular, consumption of legal substances such as tobacco and alcohol. Once again, the courts confront a slippery slope. As for human rights concerns, Cave contends that any extension of criminalization will be plagued by definitional vagueness of the crime, a violation of liberty, privacy, and autonomy, and will be laced with instances of discrimination since only pregnant women can be charged. Here, Cave relies on cases following after ROE v. WADE which demonstrate the erosion of women’s autonomy in relation to that of the fetus.

In the UK, the born alive rule is restricted to the actions of a third party. Thus, to compare cases where a pregnant woman has allegedly harmed her fetus, she turns to civil cases. English civil law has weighed in primarily on the side of a woman’s autonomy, and Cave expresses hope that the criminal courts will turn to these cases for guidance rather than rely on criminalization precedents set in the United States. In examining English civil law cases, Cave concentrates on two issues: the issue of medical consent and court-authorized Caesarean sections. Cave concludes that rather than criminalizing acts by pregnant women, the state should develop and implement more educational and treatment alternatives. Citing evidence that suggests that women will refuse to seek medical treatment if they believe they might risk being charged with a crime, Cave contends that “criminalization is not the best means of achieving optimal health of the pregnant woman and the fetus born alive” (p.96). Additionally, she points out that the extended criminalization unfairly targets minorities and the poor. In a vicious circle, poor and minority women who are often turned away from treatment programs due to their socio-economic status, find themselves the target of criminalization because the particular behavior they were attempting to remedy then caused damage or death to the child born alive.

In all, the author has presented a case study that is meticulously researched and documented, thus providing a wealth of information chronicling the evolution of case law in the area of criminalizing injury or death to a fetus or child born alive. She expresses both concern and hope for the future of pregnant women’s rights, particularly in the United Kingdom. The concern is that the courts in the UK will turn to cases in the US for guidance, where the rights of pregnant woman have been derogated vis-à-vis the fetus. On the other hand, she finds hope in English civil law which has held a woman’s autonomy is paramount. Her conclusion that education and treatment should be the alternative pursuit of the state could be enhanced by further elaborating on exactly how the state could achieve these objectives. For example, she suggests that the state [*892] should target women “before pregnancy actually commences.” Other than suggest anti-smoking and anti-drug campaigns aimed at the public at large, there does not seem to be much innovation on how to target future pregnant women. Thus, while the arguments against extended criminalization are well-thought out, developed, and researched, the alternatives presented by the author seem to fall a bit short in terms of development and presentation.

CASE REFERENCES:

ROE v. WADE, 410 US 113 (1973).

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