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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.



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3 Comment on this post

  1. I find it fortunate that the child’s lawyers are not fooled by Parfit’s “Non-Identity Problem” — which is by the way very controversial and is not acknowledged by all to be problem worth the name. One line of thought could go like this: It does not matter whether the child would not have existed had the mother not been a heavy drinker, or had she postponed her pregnancy by one day. What matters is that, had the mother not been a heavy drinker, her child, whoever this person turns out to be, would not have been affected by a foetal alcohol syndrom. If this counterfactual conditional captures a harm done by the mother to her future child, that is, if it describes morally impermissible action as far as the mother’s moral responsibility toward any future child is concerned, this line of thought continues, then that is enough for the lawyers’ case.

  2. I wonder if changes to DNA are relevant to identity in themselves. Maternal nutrition can affect gene expression (genistein in soy can change metabolism of the child, lecithin can enhance memory of the child), mutations can occur in non-coding (and non-regulatory) regions that doesn’t affect the development of the body. It seems that genotype changes only matter if they change the phenotype.

    Another approach to the compensation question is to argue that FASD is a likely consequence of heavy drinking during pregnancy, and the mother could hence expect that *whoever* she will be giving birth to has a high likelihood of a hard life. So the fact that a particular child is represented in court doesn’t matter for her responsibility – she hence ought to pay compensation at the very least to the state, and most reasonably to the child who will be having a tough life.

  3. Thanks for your responses Anders and Andrews. I think both of your ideas are promising ways of approaching the compensation issue. I was thinking that what’s important is that a particular act (a mothers heavy drinking) has harmed a child. It shouldn’t matter if this harm is comparative or non-comparative. My approach also implies compensation is warranted in wrongful life cases. However both your approaches draw attention to the fact that if the FASD child had not been born, a healthy child would have been. This is not true in wrongful life cases, and so the implications aren’t as straightforward. I’ll need to think about it some more.

    Anders – re the genetic modification and personal identity stuff, I think you have pretty much hit the nail on the head. Only changes that would eventually influence phenotype could plausibly be important for identity. Of course, this just pushes the interesting question back a step –Which changes to a resulting child’s phenotype should be considered identity-altering?

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