The Court of Appeal ruled in December 2014 that the mother of a child born with Fetal Alcohol Syndrome did not commit a crime under the Offences Against the Person Act 1861 by drinking excessively during pregnancy. This was an extremely important ruling, affirming that women must be able to make their own decisions about their pregnancies.
The charities British Pregnancy Advisory Service (BPAS) and Birthrights intervened in the case because they believed it would establish a damaging legal precedent. In seeking to establish that the damage caused to a fetus through heavy drinking was a criminal offence, the case called into question women's legal status while pregnant. Any ruling that drinking while pregnant constituted a 'crime of violence' could have paved the way to the criminalisation of pregnant women's behaviour.
This case, CP v The Criminal Injuries Compensation Authority, confirmed that a woman cannot be held criminally liable for the effects on her fetus of substances consumed in pregnancy. The extreme consequences of this approach have been witnessed in the USA, through the use of 'fetal protection laws' against allegedly drug-abusing women. These have been heroically challenged by the American organisation National Advocates for Pregnant Women.
However, there remains a powerful presumption in Britain that pregnant women should not drink at all in pregnancy, because of the possible effects of alcohol on the developing fetus. This is enshrined in healthcare guidance, and promoted by the health professionals who a woman will see over the course of her pregnancy.
Since 2007, the English Department of Health (DH) has advised that 'pregnant women or women trying to conceive should avoid drinking alcohol'. This was a shift from previous advice, which advised pregnant women not to drink 'more than one or two units of alcohol once or twice a week'. The 2007 advice added:
'If they do choose to drink, to minimise the risk to the baby, they should not drink more than one to two units of alcohol once or twice a week and should not get drunk.'
The advice caused some controversy: particularly because, as the DH admitted, there was no new evidence to support the change. Rather, the recommendation of abstinence was justified on the grounds that women might not understand what was meant by advice to drink more moderately. Then Deputy Chief Medical Office Dr Fiona Adshead explained:
'We have strengthened our advice to women to help ensure that no-one underestimates the risk to the developing fetus of drinking above the recommended safe levels… The advice… is now straightforward and stresses that it is better to avoid drinking alcohol completely.'
To advise pregnant women, and those who are even thinking of becoming pregnant, to abstain from alcohol completely is a fairly drastic measure. It forbids these women from doing something that, until they decided to conceive, may have been a very normal and important way of relaxing and socialising. For women who 'do choose to drink' at low or moderate levels, or women who drank before they discovered they were pregnant, the injunction that 'it is better to avoid drinking alcohol completely' instils feelings of guilt and anxiety.
The claim that pregnant women cannot tell the difference between sipping small amounts of wine and heavy drinking is fairly insulting to women. So why did the DH – and other organisations, such as the British Medical Association and the Royal College of Midwives – change their position on the amount of alcohol that pregnant women can safely drink?
Concerns about the effect of drinking alcohol in pregnancy are based an extrapolation from concerns about the effects of heavy alcohol consumption on some children born to women with severe alcohol problems.
FAS is a complex condition, denoting a collection of features including retarded growth, facial abnormalities and intellectual impairment, and there is continuing uncertainty in the medical community over the relationship between alcohol consumption and harm to the fetus. There were 252 diagnoses of the syndrome in England in 2012-2013.
FAS is known to be associated with heavy alcohol consumption. However, as the British Medical Association (BMA) notes, 'only four to five per cent of children born to women who consumed large amounts of alcohol during pregnancy are affected by the full syndrome presentation'. The BMA also explains:
'The damage caused by alcohol on the developing fetus is dependent on the level of maternal alcohol consumption, the pattern of alcohol exposure and the stage of pregnancy during which alcohol is consumed. This is confounded by a number of other risk factors including the genetic makeup of the mother and the fetus, the nutritional status of the mother, hormonal interactions, polydrug use (including tobacco use), general health of the mother, stress, maternal age and low socioeconomic status. For example, research to identify specific genetic factors contributing to FASD has found that polymorphisms of the gene for the alcohol dehydrogenase enzyme ADH1B in both the mother and the fetus, can contribute to FASD vulnerability.'
In other words: many factors, including nutrition and poverty can affect whether a fetus develops the kind of anomalies associated with FAS. It is not simply about the mother's alcohol intake, and cannot be explained by that alone.
Pregnant women who have problems with alcoholism need medical help and support. But as bpas and Birthrights argued in the case CP v The Criminal Injuries Compensation Authority, criminalising excessive drinking in pregnancy would only deter alcoholic women from seeking the help that they might need.
In any case, most pregnant women are not alcoholics. They are simply women who might enjoy the odd glass of wine during the nine long months of pregnancy. Indeed, not so long ago some alcohol intake (most notably, Guinness) was positively encouraged by the medical profession. It is important to emphasise that the controversy surrounding official advice about drinking in pregnancy relates to low to moderate levels of drinking, rather than heavy drinking.
Headlines, unfortunately, tend to simplify and sensationalise study findings; and the sheer number of reports tends to create the impression that drinking in pregnancy is a problem. In reality, current studies continue to offer contradictory findings, and contain many of the difficulties that have always been observed.
For example, at the beginning of January 2014, the Daily Telegraph reported on Danish research suggesting that 'Women who have an occasional drink during pregnancy have children who are better adjusted and better behaved than the offspring of those who abstain'.
Other studies have revealed similar findings, and the obvious reason for this is the class difference between mothers who are likely to drink, and those that are not. One of the study's authors, Janni Niclasen, a psychologist at the University of Copenhagen, said:
'My study shows, among other things, that the children of mothers who drank small quantities of alcohol – 90 units or more [the equivalent of a glass of wine a week] – during their pregnancies show significantly better emotional and behavioural outcomes at age seven compared to children of mothers who did not drink at all. At first sight this makes no sense, since alcohol during pregnancy is not seen as beneficial to child behaviour. But when you look at the lifestyle of the mothers, you find an explanation. Mothers who drank 90 units or more of alcohol turn out to be the most well-educated and [have the] healthiest lifestyle overall.'
Three weeks later, the Daily Mail reported: 'Children “more likely to be badly behaved” if their mother drinks more than two glasses of wine'. This article seems to have been based on a study of the same Danish cohort, by the same researchers, as that which inspired the Telegraph report. And as an excellent analysis on the NHS Choices website explains, the Mail's headline 'was attention grabbing, but inaccurate':
'The study did not prove that it was binge drinking that affected the child. In fact, there were a number of significant differences in the women who binge drank in late pregnancy and women who didn't drink, such as income and history of psychological disorders; all of which could have had an influence on the development of the child.'
The NHS Choices analysis went on to note that there were 'several limitations of this study, most of which were acknowledged by the researchers', and concluded:
'In light of the evidence provided in the study it would appear unlikely that a few too many glasses of wine during pregnancy – while certainly not recommended – will permanently influence how a child will develop emotionally in later life'.
The fact that the same study can lead to wildly conflicting headlines is symptomatic of how the jury is still out on the question of exactly how alcohol consumed in pregnancy affects the fetus.
The abstinence advice to all women who are pregnant, or thinking of becoming pregnant, is based on a precautionary approach. This essentially presumes that the lack of evidence about harm caused to the developing fetus by low levels of alcohol exposure does not indicate that there is no harm; rather that the degree of harm has yet to be discovered. This is a dangerous approach for medical bodies to take.
It is well known that it is impossible for scientific evidence to 'prove a negative', in that research will never show that something causes no harm at all. What scientific research can show is whether a certain substance does cause harm, and in what doses or contexts. A large body of research has failed to find evidence of harm from low levels of drinking. However, policymakers have adopted a precautionary approach, based on an ever-expanding list of the harms that might be caused.
The message promoted to pregnant women today is that drinking any amount of alcohol in pregnancy can lead to a range of problems with their babies, which go far beyond the symptoms associated with FAS. These range from lowered IQ to mood disorders, sleep disorders and behavioural disorders, and are categorised under the wide-ranging label of 'Fetal Alcohol Spectrum Disorder'.
In this way, women are encouraged to view any problem that their child develops as somehow related to the amount of alcohol she drank during pregnancy. The lobby group National Organisation on Fetal Alcohol Syndrome (NoFAS), for example, claims that alcohol use during pregnancy is 'the leading preventable cause of birth defects, developmental disabilities and learning disabilities'.
It is worth dwelling on the difference between the initial diagnoses of FAS, and the approach taken by organisations such as NoFAS. The initial labelling of FAS came out of the identification of babies with particular, clear and severe disorders, born to a group of women known to be heavy drinkers, and from there it was discovered that there was an association between heavy alcohol use and birth defects in some women.
By contrast, the argument that alcohol is the 'leading preventable cause' of a wide range of disabilities, ranging from physical abnormalities to emotional or behavioural problems and also ranging in severity, is used to draw an association between any problem a child might have and any alcohol consumption in pregnancy.
It should be obvious that this is a specious argument. Even women who abstain completely from alcohol during pregnancy – as many women increasingly do – give birth to children who develop the kind of problems described by NoFAS as 'Fetal Alcohol Spectrum Disorder'. The presumption of NoFAS's argument is that if women abstained during pregnancy, these problems would disappear; yet clearly, they would not.
The effect of widening the definition of FAS to include any abnormalities or problems exhibited by babies is to reverse the process of causality. Rather than evidence being sought that proves a causal relationship between alcohol and birth defects, the existence of birth defects and a wide range of other problems in some babies is simply treated de facto as evidence that the mother must have drunk some alcohol during her pregnancy, and that her baby's problems are the result of this.
Yet as a recent analysis of one study of drinking in pregnancy, published on the NHS Choices website, puts it:
'Childhood emotional development is an extremely complex issue and many parents whose children do develop behavioural and emotional problems will find that they do so for no apparent reason. Often, these types of problems are not somebody's “fault”, they just occur.'
Those who advocate telling pregnant woman to abstain from alcohol completely seem to assume that such advice is benign. The idea is that if a woman doesn't drink, her baby may not have problems; and if her baby does not have problems, she will know that her drinking is not to blame – so why not just stop drinking?
This view distorts both the personal and the policy consequences of policing pregnant women's drinking behaviour. As noted above, those women who would otherwise enjoy the odd glass of wine but follow the 'complete abstention' advice in pre-conception and pregnancy are deprived of an enjoyable, relaxing and sociable activity for over nine months of their pregnancy, without an evidence base.
Meanwhile those women who will have been drinking alcohol before realising they were pregnant, or decided to 'choose to drink' their one or two units a week, are incited to feel guilty and anxious, particularly if their baby develops some problems.
All the paediatric specialists in the land might rightly reassure women who have babies with anomalies that the causes of most anomalies are complex, and have developed throughout history in women who have never touched alcohol; but so overwrought is the culture surrounding pregnancy today that women will nonetheless worry that that one glass of champagne at their sister's wedding caused the problem.
The pressure upon women to abstain from alcohol during pregnancy is not merely cultural. At an official level, it is becoming taken as an article of faith that drinking is a marker of, or even form of, abuse of the 'unborn child'. While the UK has stopped short of criminalising drinking in pregnancy, this wider cultural presumption has some chilling consequences for women's reproductive rights. Women are presumed not to understand the difference between social drinking and chronic alcoholism. They are also treated as incubators, who have a moral responsibility to eschew their pleasures – whatever the evidence says – for the sake of creating the optimal womb environment for the baby within.