ABSTRACT

It has been argued that a policy of criminalization in England and Wales would upset the currently maintained balance between maternal and fetal rights and interests. The criminal law does not merely set out acceptable standards of behaviour within society but it stigmatizes those found in breach and imposes punishment upon them. What conduct is defined as criminal is something that evolves with public perceptions of politics, religion and morality. In criminal law the prosecution must show that there was a culpable act, a culpable state of mind and that the defendant caused the relevant harm. As medical science progresses, health professionals can state with increasing certainty what caused the injury or death of the neonate. Yet there still exists a host of unknown factors in fetal health and much is left to educated guesswork. Many women who engage in a potentially harmful activity give birth to a healthy child.