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There are lots of things that are generally accepted as harmful to a developing fetus, such as drinking alcohol, lots of caffeine, smoking, etc.

Would a pregnant woman who did something known to cause harm to the fetus be open to being charged with assault or something similar?

For example, suppose a woman gets pregnant, doesn't stop drinking, and the baby is born with fetal alcohol syndrome or some other pathology. Is that considered a crime?

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    Worth noting that the treatment of this issue varies between U.S. states and there is not a uniform national rule or even really a clear consensus stance with just a few outliers. Some states have specific statutes on point, others have interpreted existing statutes differently.
    – ohwilleke
    Commented Nov 10, 2022 at 22:26
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    Also note that the effect of caffeine (in relevant doses for drinking coffee) during pregnancy is still debated quite a bit. That is because epidemiological studies report associations and not causal effects. And when the effects are small (such as in caffeine) it is very difficult to correctly subtract confounding effects (e.g. income, lifestyle, age, athleticism, sleep etc) from the observed outcomes. Commented Nov 11, 2022 at 14:02
  • U.S. law is very non-uniform on this point. States vary in what they do.
    – ohwilleke
    Commented Mar 31, 2023 at 2:02

3 Answers 3

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Yes or no, depending. The question is investigated in "The Status of Pregnant Women and Fetuses in US Criminal Law" (JAMA), which collects 23 opinion in US jurisdiction. In Reinesto v. Superior Court, 182 Ariz. 190 where the court ruled that the state cannot prosecute for child abuse a woman who uses heroin during pregnancy and thereafter gives birth to a heroin-addicted child. However, in Whitner v South Carolina, 492 SE 2d 777 the court did find the mother criminally liable for child abuse, based on prenatal drug use. The South Carolina case is the sole example of that type, in the study (published 2003).

Charges range from child endangerment/abuse, illegal drug delivery to a minor, or fetal murder/manslaughter. The general finding is that since a fetus is not legally deemed to be a person (in those jurisdictions, at that time), where was no "child abuse". South Carolina, on the other hand, reasoned, here and in prior cases, that

We have no difficulty in concluding that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person.

A different study ("Criminal Charges for Child Harm from Substance Use in Pregnancy", JAAPL) which included cases up to 2015, found a slightly different distribution but generally concludes that courts do not consider maternal drug use to be a legal question. That article also cites a web page which at the time is purported to say that 18 states allow civil child abuse proceedings.

In Chenault v. Huie (Texas), the court found that

Texas does not recognize a cause of action in tort for injuries to a child that result from the mother's negligent or grossly negligent conduct while she was pregnant with the child

but according to the more current Guttmacher Institute study, about half of the states have such a civil cause of action.

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    This may be out of scope of the question, especially after the updates, but most of the links are from times when Roe v Wade was in place and focus on the distinction between "child" and "fetus". My understanding is that now a "fetus" is entitled to be considered a "person", thus making abortion "murder". Is that not the case? Commented Nov 10, 2022 at 18:41
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    Actually, Dobbs did not decide that a fetus is a person, though Texas did. The "abortion = murder" theory has not been legally tested yet in any state, and in most states there would be no basis (fetuses are excluded from the murder statute). So this is really a separate question, requiring different research.
    – user6726
    Commented Nov 11, 2022 at 0:53
  • The Chenault v. Huie case, a civil action in tort, does not address the question very well. With the current legal climate about abortion in Texas, which focuses on the "rights of the unborn child" I think it would be decided otherwise today. The court considered " the various public policy issues" and public policy changes. It is nevertheless interesting.
    – Wastrel
    Commented Nov 11, 2022 at 14:48
  • interesting, thank you for the clarification. I will probably write up that second question here sometime. Commented Nov 11, 2022 at 16:14
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    "hare and in prior cases"? ;-)
    – chux
    Commented Nov 11, 2022 at 16:20
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Is that considered a crime?

NO, not if the baby lives

The leading case is CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation) [2014] EWCA Civ 1554 in which compensation was sought for a child on the basis that the mother's drinking was an offence under section 23 Offences Against the Person Act 1861:

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding ten years.

However, the Court of Appeal found that a feotus is not a "person" within the meaning of section 23 so this offence is not committed in these circumstances.

The publisher Family Law offers this detailed summary:

The child was born with foetal alcohol spectrum disorder as a consequence of the mother’s excessive drinking during pregnancy. An application for compensation was made to the Criminal Injuries Compensation Authority. The application was rejected on the grounds that the child had not sustained an injury directly attributable to a crime of violence within the terms of the Criminal Injuries Compensation Scheme 2008 [CICA1].

...

YES, MAYBE if the baby dies as a result.

I cannot find and caselaw for a mother being liable for her baby's death in this way, but in a related case, the Attorney General's Reference (No 3 of 1994)([1997] 3 All ER 936, as well making it clear that a foetus was not to be regarded as another person, injuries to one in the womb that causes death following a live birth would be manslaughter - the offender in this case stabbed the mother which injured her feotus who died soon after birth.


1The Criminal Injuries Compensation Authority (CICA), is a government funded organisation that was created to provide compensation for blameless victims of violent crime. A conviction is not necessary, just enough evidence to meet the criteria for compensation.

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Though there's no federal law banning the use of alcohol while pregnant, a few states consider drinking alcohol while pregnant child abuse:

  • Alabama
  • Arizona
  • Colorado
  • Florida
  • Georgia
  • Illinois
  • Indiana
  • Kentucky
  • Massachusetts
  • Maine
  • North Dakota
  • Nevada
  • Oklahoma
  • Rhode Island
  • South Carolina
  • South Dakota
  • Texas
  • Utah
  • Virginia
  • Wisconsin

Some of the relevant statutes are cited here.

Substance (drug) abuse is even more restricted, with about 24 states and DC having specific laws regarding doing it while pregnant.

As for tobacco, I couldn't find any statute banning the practice.

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    This list comes from a site claiming that "the following states have legal provisions that may [emphasis mine] define alcohol use by a pregnant woman as a form of child abuse". And there is no direct link to the actual legal provisions but just a general claim that the list comes from the National Institute on Alcohol Abuse and Alcoholism. I think this is not a good source for the legality of the issue. Commented Nov 11, 2022 at 14:11
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    The linked site with the relevant statutes only describes non-criminalizing statutes but importantly states that "Prosecutors have tried, without success, to bring criminal actions against substance-abusing pregnant women in Arizona, Florida, Georgia, Kentucky, Massachusetts, Michigan, Nevada, New York, and Ohio". I think this puts the above answer into perspective. Commented Nov 11, 2022 at 14:13

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