In today's podcast, Leonard Peikoff says that, under a proper legal system, one would
not be able to charge a mother with child endangerment if she does something while she is pregnant that results in the child being born with a deformity. The reason Dr. Peikoff gives is that the damage happened while the fetus was still a potential, and not an actual, human being, and although such a mother would be
immoral, her actions must not be deemed
illegal because she did not harm an
actual human. He goes on to say: If we deem it illegal for a mother to, say, smoke during pregnancy, then can't the state also step in and regulate how much sugar she eats while pregnant, in order to give the fetus the best chance in life? Whose sperm should be combined with her eggs in order to give the fetus the best chance of being an intelligent, healthy adult? And then we're starting to sound an awful lot like Adolf Hitler.
Here's the problem I have: once the child is born, an
actual human being has been harmed by the actions of its mother. Suppose, say, a woman were being treated for multiple myeloma, a form of blood cancer, with thalidomide. (Yes,
that thalidomide, the stuff that caused babies to be born with grotesque deformities in the '60s -- it also works against certain types of cancer.) Suppose further that she's of the right age to get pregnant and she ignores her doctor's warnings about the risk of birth defects. Nine months later, she gives birth to a baby with no arms. In that, case, it was the woman's action that
directly caused an
actual human being to have no arms. According to Dr. Peikoff, such an action would be monstrous and immoral (agreed!) but shouldn't be legally punishable (here's where I'm not sure).
I certainly recognize the validity of the points Dr. Peikoff makes:
- If we criminalize the harming of a fetus, we are placing the potential above the actual.
- The state must not be allowed to regulate a woman's pregnancy by telling her what she can and cannot eat, who she should have the baby with, etc.
But, to me that's a case for why the state must leave a woman alone during her pregnancy (that is, they cannot ban smoking, or place impediments in her way to taking drugs like thalidomide, as the FDA currently does), and must not punish her if, say, she smokes during her pregnancy and gives birth to a perfectly healthy baby. Nor is it any of the state's business if she gets pregnant while taking a birth-defect-causing drug and aborts the pregnancy. However, if she takes a particular drug during her pregnancy and
it can be proven after the child is born that her actions caused it irreparable harm, I maintain that a crime has been committed.
I'd like some insight, dear readers. What say you?
