Calls for women who drink heavily during pregnancy to face criminal liability for the subsequent harm to their future children are driven by notions of the ‘bad mother’ and the view that such behaviour represents a serious moral wrong, worthy of criminal penalties. If we are to avoid the erosion of women’s autonomy and extensive scrutiny of women’s lives such maternal criminal liability would precipitate, a new approach is needed in the criminal law. Until now, questions regarding criminal liability for conduct at the prenatal stage have focussed on the status of the victim at the relevant time; taking little account of whether the harm was caused by the pregnant woman or a third party. This has resulted in the woman who drinks heavily during pregnancy being presented as equally blameworthy as the man who stabs his pregnant partner. I argue that a relational approach; accurately reflecting the different nature of the relationship between a pregnant woman and her foetus, to that of a third party and a foetus, is vital for the law to capture the moral blameworthiness of conduct which unintentionally causes harm to future children. Only when the law is able to do this can arguments in favour of maternal criminal liability based on notions of the ‘bad mother’ be addressed and the door firmly closed on criminal liability for maternal prenatal conduct.
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