Fetal felony

I think we could all agree, especially those of us parenting children with fetal alcohol exposure, that the damage done to a developing fetus by a birthmother's substance abuse is a tragedy.

But should it be a felony too?

That's the question raised by a case in South Carolina in which a mother who used crack cocaine during her pregnancy was convicted of homicide after her baby was stillborn at 35 weeks. The prosecutor declared that her continuing to smoke as much crack as she could despite its effect on her child showed "extreme indifference to life." And, undoubtedly, to what that child's life would have been like had he or she lived.

Which leads one to wonder, with great trepidation, whether, if a person can be charged with murder for killing a fetus, should they be charged with assault for knowingly and deliberately causing grave damage to that developing child? FAS is a completely preventable birth defect, with lifelong implications for the child, the family, and for society. If you did the kind of brain damage to a child by shaking him or hitting him or beating him about the head with a stick that you do by drinking alcohol during pregnancy, you would be looking at some serious jail time. Ought there to be some culpability for that alcohol-induced damage? And would it make any difference?

Probably not. Probably it would just result in less prenatal care, less honesty about alcohol use and more secrecy for FAS/E. Given the amount of damage that can be done before a woman even knows she's pregnant -- and given the fact that many birthparents of FAS/E babies are FAS/E victims themselves -- that "knowingly and deliberately" gets a little hard to prove. All around, it's a tragedy. That much is beyond debate.