Should a Pregnant Woman Be Punished for Exposing Her Fetus to Risk?

In some ethical and legal respects a pregnant woman and her fetus can be considered separate. Both the woman and the fetus are ordinarily affected by the well-being of one another for as long as each of them live. The ethical and legal issues are challenged deeply in cases where the well-being of the fetus and the mother appear to be in conflict.

Our society struggles with identifying cases where the pregnant woman’s interests and/or behaviors might put her fetus at risk. Criminal and/or civil commitments should be used to bar pregnant women from exposing their fetuses to risk. The state of Wisconsin enacted a statute allowing pregnant women whose habitual drinking exposes a fetus to substantial risks of physical harm to be taken into custody and undergo involuntary patient alcohol treatment.

Other states have proposed or enacted bills that respond to women who expose a fetus to the harms of alcohol in pregnancy by means such as requiring involuntary civil commitment of the woman, requiring health practitioners to report newborns demonstrating prenatal exposure, expanding definitions of child neglect to include neonatal harm or prenatal damage to a child, and defining such acts as criminal mistreatment in the first degree. 2 There have been many efforts to restrain women from exposing their fetuses to damaging drugs, specifically cocaine, by applying law enforcement measures.

In the prominent case of Whitner vs. State of South Carolina (1997), Cornelia Whitner was charged with criminal child neglect for exposing her fetus to cocaine. She was sentenced by a South Carolina court to eight years in prison. Her viable fetus was found to be protected under the state’s child endangerment statute. South Carolina currently remains the first and only state whose law recognizes the viable fetus as a person and accordingly permits criminal prosecution of women for endangerment of a fetus.

Another prominent case that was reviewed by the U.S. Supreme Court was Ferguson vs. City of Charleston (2001). In 1989, a public hospital in Charleston, South Carolina began implementing a policy to randomly test women for drugs who came for prenatal care or delivery without their informed consent. If the women tested positive, they were arrested and not given the opportunity to seek drug treatment. In 1990, the policy was modified to allow the women to avoid being arrested if they entered into a drug treatment program, attended all their counseling appointments, and passed all their subsequent drug tests.

Ten women tested positive for cocaine were arrested and responded by suing the hospital and the state. In 2001, the U. S. Supreme Court ruled in favor of the women because the tests were administered without their consent. Drug and alcohol addictions are illnesses that require some type of effective treatment to overcome them. I believe that women don’t intentionally expose their fetuses to drug or alcohol abuse, but if it happens, I believe the problem needs to be identified and addressed immediately because obviously there is a problem.

In my opinion, I believe that women should be punished for exposing their fetuses to drug and alcohol abuse. The fetuses are innocent and shouldn’t have to suffer on the ignorance of their mother. I think that treatment should be offered and monitored frequently. If the program is not followed by the pregnant woman, then she should not be allowed the opportunity to raise the child until she has proven that she will provide a safe and drug-free environment for the child.