This dissertation has five goals. In each case, the relevant concomitant research questions following from each goal is added. The first goal of this dissertation is to establish what, generally, if any, are the (possible) moral implications of both becoming pregnant and deciding to carry the fetus to term. Do pregnant women, who choose to carry a pregnancy to term, i.e. prospective mothers, have moral responsibility for and toward their fetuses and consequently prospective children? Or does the pregnant woman’s alleged sovereignty over her own body imply a right to harm herself, even to the extent that it amounts to undeniable permanent harm to her fetus and consequently child? Are there limits to women’s rights in the context of pregnancies that are carried to term? And if so, what limitations might there be on a prospective mother’s autonomy and how are they morally justified? Questions raised by this goal pertain to how the possibility (indeed, as will be argued, the fact) of such responsibilities is reconcilable with the pregnant woman’s entitlement to have her autonomy, and her concomitant sovereignty over her own body, be respected.
39 The second goal of this dissertation is to establish exactly what these moral responsibilities are. It is a well-established rule in liberal and just societies that competent individuals enjoy the right to behave as they choose provided that the behaviour is within legal and moral limits. One’s right or freedom to do as one pleases is therefore not absolute. Moreover that, with the exercise of one’s rights is the co- relative idea of responsibility. What set of moral responsibilities therefore face a woman who opts to carry a pregnancy to term? Does it mean that she has a duty to stop drinking if she is pregnant? Does it mean that she has a duty to avoid reproduction by using contraception or terminating her pregnancy if she is at risk for having a child with FAS? To what extent can she be held morally responsible for prenatal harm incurred by her child? While the prevention of FAS may be a relatively simple matter, questions remain about the extent to which women could be held responsible for all kinds of harms that may be related to their behaviour while pregnant. If harms could be prevented by abstaining from alcohol, what about all kinds of (for the woman beneficial, though not for the fetus) drugs, treatments, activities (including sexual behaviour), and the like? And does society have a role to play in preventing FAS?
The third goal of this dissertation is therefore to investigate society’s interest in the issue of morally justified behaviour during pregnancy. What exactly is this interest, if it exists at all, and how is it to be protected and/or enforced? To what extent is the argument from scarce resources morally relevant to this debate? Who exactly is to act on behalf of “society”? Is it the state, only the state, or other institutions as well? If so, which institutions, and how are their interests pertinent to this situation?
Following from this, the fourth goal of the dissertation is to establish who all the relevant parties are that carry moral responsibility in respect of FAS, particularly in
40 South Africa and what their responsibility might be. Is the individual pregnant woman the only party to be held morally responsible for the aberration of FAS? FAS does not come into existence, nor does it thrive, in a social and political vacuum. FAS can indeed also be seen as a social disease with roots in social practices and beliefs that are morally deeply problematic. Many factors that have been found to influence a woman’s decision to drink have to do with her psycho-social and economic circumstances including alcohol’s widespread availability and social acceptability. This suggests that society also has a role to play in FAS prevention. How realistic is it to expect morally upright and responsible behaviour from many women whose fundamental interest in life is often hardly more than access to a next plate of food or whose life circumstances are relatively bleak? When moral responsibility is conferred, it is required to also ask critical questions about the extent to which alcohol abuse is a societal condition. In turn, this raises questions about society’s responsibilities towards these women. Again: is “society” here to be understood only as the state, or also as other institutions? If so, which institutions, and what are their responsibilities? Would the state be justified in interfering in the rights of a pregnant woman for the sake of protecting the future child/preventing FAS in children? Is criminalising her conduct justified? Should the state adopt coercive measures? What arguments can be made for and against state interference in a pregnant woman’s rights? The choice is “between respecting a pregnant woman’s right to decide what happens to her own body and protecting an innocent child from preventable harm. Who should the state protect: a woman’s interest in remaining free from certain forms of state control” (Mathieu 1991) and interference or the “child’s interest in having a decent quality life?” (Mathieu 1991). Even if a prospective mother has a moral responsibility toward
41 her fetus, should those be made legal ones? What are ethical social responses to prevent FAS?
The fifth and final goal of the dissertation is to establish if and whether children who have suffered prenatal harm and consequently have FAS can and should be allowed to institute delictual actions for prenatal harm against their mothers. This, in turn, raises the interesting question about the (possible) rights, not only of children, but also of fetuses, given the fact that, in South African jurisprudence, the fetus has no rights. In criminal law, the intentional killing of a fetus is not considered an act of murder because the fetus is not a person in law. This means that if someone “hits a pregnant woman” in the stomach “intending to kill” the fetus, and succeeds in doing so, the perpetrator can “be charged with assault of the woman but” not with murder for killing her fetus (Mathieu 1991:1-28). In South African jurisprudence, the issue of possible “rights of the fetus” can be interpreted in terms of the nasciturus fiction and the Choice on Termination of Pregnancy Act (No. 92 of 1996). Although the fetus has no legally enforceable rights in South Africa, the courts have recognised that situations that are prejudicial to the fetus may arise, had it been born alive at the time of the harm-causing event (Kruger & Skelton 2010). The law protects these potential interests of the unborn child, by employing a fiction (the nasciturus fiction) which allows for the fetus to be regarded as born if it will be to the fetus’s advantage (Kruger & Skelton 2010). A review of pertinent South African case law suggests that the fetus need not have any legal standing in order for the courts to recognise delictual actions for prenatal harm. Moreover, the conditions and limitations on a woman’s right to an abortion inherent in the Choice on Termination of Pregnancy Act suggests that at least some value is afforded to the fetus, as a pregnancy progresses and the fetus develops. Given this knowledge, might it therefore be legally possible that children with FAS
42 can and should be allowed to sue their mothers for damages for their disabled condition?
The implications and potential impact of the dissertation include:
Contributing to existing ethics literature on the inter-related problems of alcohol abuse and drinking during pregnancy and consequently FAS in the South African context.
Stimulating discussion and debate on the topic of moral responsibility for FAS rather than looking at these problems solely from a “rights-based” perspective.