Two years ago, there came before a Family Court judge in White Plains, N.Y., a woman in her ninth month of pregnancy with a history of having so abused her children that six of them had been taken from her and placed for adoption. The seventh was in the custody of the father.
The judge ruled that on the basis of the evidence, he had to declare that "the child in utero is at risk of being neglected." At birth, he said, the child would be turned over to the Department of Social Services, and a hearing would be held at which the mother and her attorney could offer evidence that the child would not be abused if it stayed with her.
In protest, an American Civil Liberties Union attorney argued that "New York State's statute dealing with abuse and neglect does not apply to fetuses but to living children."
Around the country, courts have been divided as to what right -- if any -- fetuses have to protection from wayward mothers or from their mothers' heedless employers who allow working conditions that can damage the fetus.
In a current California debate on how to obtain compensation for fetal injuries in the workplace, the National Organization for Women, along with California Women Lawyers, is insistent that the fetus not be given legal status. So is the California branch of the American College of Obstetricians and Gynecologists. Its chief administration officer told the Los Angeles Daily Journal: "From the choice point of view, we oppose any attempt to make the fetus a person."
The fear of the fetus having the legal status of a person is indeed concerned with abortion rights. Terminating a fetus is one thing; terminating a person is another.
Meanwhile, for the first time in New York state, an appellate division of the State Supreme Court has ruled that if cocaine is found in a newborn and the mother admits having used drugs during pregnancy, there is enough justification for the city's Department of Social Services to ask for a hearing on child neglect.
The lower court had gone the other way. There, Family Court Judge Jeffrey Gallet held that there is no New York statute controlling a pregnant woman's conduct toward a fetus. And even if there were, he said, it would violate a woman's constitutional right to privacy.
Speaking for a unanimous five-judge appellate panel, Justice Ernst Rosenberger found Gallet unpersuasive. "Every human being," said Justice Rosenberger, "has the legal right to begin life unimpaired by physical or mental defects resulting from the negligence of another."
A woman's right of personal privacy, he added, applies to an abortion decision, but the right to privacy is not unqualified when it is a matter of protecting a "child who is born when a woman has elected to carry that child to term and deliver it."
But he said "child" -- not "fetus."
Rosenberger, however, soon included the protection of the fetus in his ruling -- on the basis that there is an important state interest in preserving life, including "the potentiality of life." Accordingly, "child abuse and neglect statutes should include unborn children," for they provide "the only reasonable mechanism to implement state interests in the unborn."
The case has now been remanded to Family Court for fact-finding on the charges of neglect. The arguments over the ruling will continue for a long time -- all the more so if the mother is eventually imprisoned. Putting a drug-using mother behind bars will not solve her drug problem. Much more useful would be an end to the practice of barring pregnant women from most drug treatment programs.
In The New York Times, Dr. Wendy Chavkin of the Columbia School of Public Health has noted that there are only "a handful of programs around the country which are geared to pregnant addicts. . . . Pregnancy may indeed be a time when women can be motivated to get clean from drugs. But they need treatment, not punishment, in order to do so."
But what of those who can't get off drugs, including some who do get treatment? What of the actual life inside them? (The term "potential life" makes no sense at all; look at a sonogram.)
While criminal punishment of these mothers is a dead end for them, requiring a child who has been abused in utero to take the risk of further violations of his or her bodily integrity is another kind of dead end.
At the least, those who want to bar the fetus from legal standing might pay more attention to greatly improving foster care for when the fetus is finally recognized as a person by everyone. But by then lifelong damage may already have been done.