Foetal alcohol syndrome, compensation and harm
A case currently before the UK Court of Appeal could have far-reaching implications for mothers who drink during pregnancy. Lawyers for a seven-year-old child with foetal alcohol syndrome caused by her mother’s heavy drinking, argue she should receive compensation from the government-funded Criminal Injuries Compensation Authority as she has been the victim of a crime.
One relevant consideration to this case could be the nature of the harm suffered by individuals with foetal alcohol syndrome. Foetal alcohol syndrome is at the severe end of a continuum of disorders that are caused by in-utero exposure to alcohol, collectively known as foetal alcohol spectrum disorders (FASD). FASD cause impairments including developmental delays, difficulty hearing, problems with vision, learning problems, language and speech deficits, impulsiveness, a short attention span and difficulties making rational decisions. Intuitively, then, it seems children with FASD have been harmed in an obvious way by their mother’s drinking. A recent article puts it this way:
“The child born with FAS or FASD is arguably deprived of a right to an open future because of harm suffered as a consequence of maternal behaviours…..It seems logical and morally appropriate to afford some protection to the future welfare of the child who will be born. If children could be given the option to exist with or without the consequences of FAS, it is likely they would choose the latter.”
However this picture could be challenged. It is not immediately clear that children with FASD could ever be given “the option to exist with or without the consequences” of FASD. Say a woman, Jen, has a child, Jim, who has a severe FASD as a result of Jen’s drinking. One could argue that Jim is not harmed in an ordinary sense by Jen, because if Jen didn’t drink during pregnancy Jim wouldn’t exist. Jen instead would have had a child with a different identity, who did not have FASD. Jim has not been deprived of a right to an open future because of his mother’s drinking, as he would not have had any future if not for her drinking. This idea draws on the famous non-identity problem described by Derek Parfit.
Similar considerations have influenced compensation cases in other contexts. In so-called “wrongful life” cases, in which children with disabilities pursue legal action against doctors based on the claim their birth should have been avoided, compensation is often denied because the children have not been made worse off as a result of their birth. One court held it was:
reluctant to find that the infant ha[d] suffered a legally cognizable injury by being born with a congenital or genetic impairment as opposed to not being born at all…. recognition of a cause of action for wrongful life in this case would require this court to find [the child] had an interest in avoiding his own birth.
The sentiment here reflects an ethical view that comparative harms (harms that make people worse off) have a greater weight than non-comparative harms (harms that are just bad for people).
It seems plausible that in-utero alcohol exposure could change the identity of the resulting person, rather than just alter their development. Alcohol causes mutations in foetal DNA, and many people believe that the use of genetic modification technologies on a foetus could potentially be identity-altering. As an extreme example, if my parents had spliced my foetal DNA with the DNA of a chimpanzee, then it seems likely that I never would have existed – a half human half chimpanzee hybrid would have been born instead of me. Much subtler genetic modifications may also be seen as identity-altering. If my parents had used genetic modification technologies to change the sex chromosomes of my foetal DNA, this too might be thought sufficient to cause me never to exist.
If we believe that some genetic modifications are identity-altering, then it is theoretically possible that the mutations and changes associated with FASD are also identity-altering. If this is true, it could mean that some individuals with FASD are not made worse off by their mother’s drinking – there mother’s drinking is rather just bad for them. They suffer a non-comparative harm rather than a comparative harm.
Although the idea that comparative harms matter more than non-comparative harms seems to have influenced wrongful life cases, it could have counter-intuitive implications when considering FASD compensation claims. It could imply, for instance, that an individuals with a severe form of FASD (which was considered to be identity -altering) would have weaker case for compensation than an individuals with a mild form (if it were considered to be identity-preserving). Similarly it may imply that some women who have already consumed some alcohol through pregnancy should drink more if this would change the identity of the resulting child; as this would mean that any harm the child suffers would be non-comparative rather than comparative. Clearly this would be a bizarre conclusion.
Still, these considerations point to some ways in which work in practical ethics could provide important input to cases like this. An account of when, if ever, comparative harms should have more weight than non-comparative harms; and when genetic modifications should be considered to be identity-altering, would have significant implications for legal policy makers considering issues relating to the in-utero treatment of the foetus.