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Compensation for unborn child fails

Recently reported was a case of on behalf of a young child in which compensation was sought from the Criminal Injuries Compensation Authority for injury caused to the child by the mother drinking alcohol during the pregnancy.

Prior to this case it was well established that a foetus could not have a legal identity while it was in the womb. This allowed for women to have abortions. Any to this principle would have created great legal uncertainty in the sphere of medical negligence. The Court found that offences under the Offences Against the Person Act 1861 could not be committed against a foetus as it was not a person. The Judges also commented that Parliament had had the option to criminalise the behaviour against a foetus and has not done so.

It was argued that for the purposes of the Criminal Injuries Compensation Scheme, the mothers actions were criminal because she drank even though she was warned against the side effects of alcohol on her foetus and therefore she could foresee the risk of damage to her unborn child.

However, this was not accepted by the Court of Appeal. This was on the basis that the foetus was not a person and therefore could not claim for compensation. The Court was also conscious that if it criminalised the drinking of alcohol while pregnant it might also be necessary to ‘criminalise’ other behaviour such as eating cheese that is not pasteurised and eating boiled eggs or other such food that women are advised not to eat while pregnant. This was thought to be unreasonable.

This case was closely watched by the legal world. There were around 80 similar cases in the pipeline where compensation was sought based on alcohol consumption.

It was deemed by the Court of Appeal that the state should be working towards protecting and helping the child but not paying her compensation. She needs help and support with the difficulties she developed in the womb as a result of excessive drinking. The state needs to provide this support but the Court held that this should not be through the means of a compensation pay out.

Swain & Co are experts in all aspects of medical and compensation law. Call us on 02392 483322

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