SHOULD FETUSES BE counted among the victims of child abuse?

A recent court case in Hartford, Conn. has brought this issue into the news, revealing yet another facet of America's painful obsession with the definition of human life. Many advocates for children's welfare feel that a mother who would take drugs or act in other irresponsible ways during pregnancy has shown herself to be an unfit parent. Yet it is evident that prosecuting such women for child abuse would effectually decide the abortion question in favor of the "rights of the unborn," and possibly invade the woman's privacy as well.

In extreme cases like the Hartford one, the argument for taking away custody seems compelling. The woman in question had been a cocaine addict since the age of 11, and continued to take drugs during pregnancy, even shooting up after her water broke. Nonetheless, the State Supreme Court ruled that since the fetus was not legally a person, it had no legal rights. In fact, it wasn't even legally a "child" yet, and the mother was not yet a "parent," so she couldn't be penalized for child abuse.

This semantic sophistry dissatisfied many child-welfare professionals, yet they also saw that the opposite decision might be nearly as bad. Abortion rights advocates, such as Planned Parenthood, reluctantly supported the court's decision because defining the fetus as a person would make abortion murder by definition.

The no-win logic of their position might be some thing like this: If the fetus is not called a person, some "children" will be sent home with negligent parents who cannot be prosecuted as abusers. But if it is called a person, many more children will be born to negligent parents who are unfit to raise them and would have had abortions if they were allowed. "The greatest good for the greatest number" is the only principle that enables one to put a bold face on the situation.

Even aside from the abortion issue, the concept of prenatal child abuse has other disturbing implications. In less obvious cases of abuse, a mother's custody of her newborn child might depend on a positive drug test, a notoriously imperfect procedure. Twice in the past three years, New York Judges have removed children at birth after the mother tested positive for drugs, only to find later that they were mistaken.

And drugs may not be the only abused targeted by the courts. With the growing body of evidence about smoking's harmful effects on the fetus, the courts could easily rule that smoking during pregnancy is a form of child abuse. This would be especially unfair because, nicotine, though an extremely addictive drug, is nonetheless a legally acceptable and culturally encouraged stimulant. Nicotine addiction may have begun long before the woman over thought of pregnancy, and pregnancy is hardly a good time to quit and start going through withdrawal (stress also affects the fetus adversely).

Once such a precedent is set, women whose jobs involve contact with hazardous materials might be held back--or laid off--by their employers, who would be trying to clear themselves of liability if the woman to become pregnant and have a damaged fetus. Sound far-fetched? In fact, a major legal controversy arose last year over whether employers were being paternalistic and discriminatory by shunting women away from positions of responsibility which involve hazards to fertility.

The effect of "fetus-abuse" legislation would be to place an undue burden on the pregnant women. Justice David M. Borden, who wrote the decision in the Hartford case, said he rejected the fetus-abuse argument because it would have made judges look back throughout the whole period of pregnancy for possible "abuses" any time a child was born damaged, throwing a suspicion on the mother which would often be impossible either to prove or remove.

And why focus on the woman? Research shows that men's exposure to hazardous substances in the workplace, or their use of drugs, also contribute to defects in the children they father. To be fair, the courts would have to examine the father's lifestyle prior to conception before blaming the mother for the child' defects. Most would agree that this would be unwarranted governmental intrusion into our private lives.

Because of these difficulties, "fetus abuse" is not a viable legal concept. But this doesn't mean that children born with a parent like the Hartford cocaine addict must be left at the mercy of their dysfunctional families forever. If a pregnant woman is observed shooting up in the delivery room (or some such egregious action), her name can surely be referred to social workers who will check in on the family after the child is born and see if the parents are still incompetent. Sadly, they will generally find enough grounds to remove the child anyway.

Jendi B. Reiter '93 is an editorial editor of The Crimson. Her column will appear regularly on alternating Mondays during the semester starting September 28.