Maternal Smoking during Pregnancy: the
Public Health Crisis and the Legal Responses for the Mother’s Actions*
Maternal smoking during pregnancy is a major risk factor for many adverse pregnancy outcomes such as low birth weight, infant mortality, and long-term deficits in the physical and mental development of the offspring.[1] Despite these harmful effects, nothing prevents a woman from smoking during pregnancy except her own desire to foster the healthy physical, neurological and behavioral development of her child. Unfortunately, too many women continue to smoke during pregnancy and ultimately harm their innocent children. Over the past decade, a trend has emerged towards protecting the rights of the fetus against prenatal harm, as long as the fetus is born alive.[2] However, this trend does not yet protect the rights of the fetus before the fetus is born alive, and does not include the harm caused by prenatal smoking, Legal intervention is essential to protect the fetus from the adverse effects caused by maternal tobacco use during pregnancy. Because the state has a compelling interest in protecting the rights of the fetus from such grave danger, it should be able to take action in these circumstances without eradicating women’s rights to privacy and parental autonomy for other situations.[3]
This paper first examines
the harmful effects of prenatal exposure to maternal tobacco smoke and looks at
the cases in which passive smoke has constituted battery and has resulted in a
loss of child custody rights. Next, it
focuses on the trend in several states towards protecting the rights of fetuses
by allowing them to sue for prenatal harm after birth. This paper then proposes legal remedies that
should be available to infants so that they may recover for prenatal injury
caused by exposure to maternal tobacco smoke.
Lastly, it examines these proposed legal remedies in light of women’s
rights to privacy and parental autonomy, and demonstrates how the state’s
interest in protecting the fetus is compelling enough to supers
I. The Impact of Maternal Smoking during Pregnancy
Cigarette smoke contains over 2000 substances, including carbon monoxide, nicotine, and hydrogen cyanide, which cross the placenta and enter the fetus’s system.[4] Maternal smoking during pregnancy negatively affects both the physical and mental development of the fetus while in utero and throughout life.[5] When a pregnant woman smokes, the nicotine and carbon dioxide that mix with the fetus’s blood inevitably impact the fetus.[6] The development of the fetus depends on the quantity of oxygen provided by the mother, and carbon dioxide reduces the amount of oxygen supplied to the fetus by up to 40% in heavy smokers.[7] Studies show that the byproducts of tobacco have an immediate effect on the fetus since it causes an increase in the fetus’s speed of cardiac rate and slows its breathing.[8] These studies demonstrate that smoking during pregnancy affects prenatal and postnatal growth, increases the risks of fetal mortality, morbidity, and cognitive development, and negatively affects the behavior of children and adolescents.[9] This section will discuss each of these effects on fetuses and will explain the ways in which they subsequently manifest themselves as problems in children.
A. The Negative Physical Effects
Scientific studies
have determined that maternal smoking during pregnancy leads to an increased
risk of a continuum of physical effects.[10] These effects range from severe problems like
sudden infant death syndrome to mild forms of congenital defects such as cleft
palate. These problems are outlined
below.
1. Sudden Infant Death Syndrome
(SIDS)
Sudden Infant Death Syndrome, SIDS, is perhaps the most devastating effect caused by exposure to tobacco byproducts while in utero.[11] SIDS is a fatal condition characterized by the sudden death of an infant in the post-neonatal period without any clinical evidence of a direct cause.[12] However, researchers have been able to causally link smoking during pregnancy to SIDS[13] and have determined that maternal smoking during pregnancy is a major risk factor for SIDS, with nicotine as the likely active agent.[14] One study explained that maternal smoking during pregnancy results in a failure of protective reflexes after birth that places the infant at risk for sudden death during normal life stresses that may occur in sleep, such as a lack of oxygen to living tissues (hypoxia) usually resulting from prone sleeping or obstruction of the airways.[15] Another study suggested that the rate of SIDS in infants exposed to tobacco in utero is higher because of disrupted sleep-arousal patterns caused by a delayed maturation of the regulatory brain functions.[16] In addition, the nicotine transferred to the infant while in utero results in a delay of arousal, which also prolongs the duration and intensity of the hypotoxic stress.[17] While researchers are not exactly sure of the physiologic process during SIDS, they have determined that infants exposed to maternal smoke in utero, as compared to unexposed infants, are more likely to experience a cessation in breathing, and are less able to revive their breathing when this cessation occurs.[18]
2.
Lower Birth Weight
Maternal smoking while pregnant also causes lower birth weight due to preterm birth or growth retardation.[19] Low birth weight babies are at risk for serious health problems throughout their lives.[20] Maternal cigarette smoking during pregnancy is an established contributor to reduction in neonatal size[21] and is one of the major risk factors for low birth weight in developed countries.[22] On average, infants born to smoking mothers have a reduction in birth weight at term ranging between 150 and 250 grams.[23] Babies born to smokers are 1.5–3.5 times more likely to have low birth weights than babies born to nonsmoking mothers.[24] The greater the number of cigarettes smoked by a woman during pregnancy, the less well the fetus will grow and develop.[25] In addition, as is shown in the bar chart below, the longer the woman smokes in the course of her pregnancy, the higher the odds are that the child will weigh less at birth.[26]
Maternal smoking during pregnancy also results in decreased infant weight, length, and head circumference,[27] and, typically, in reduced peripheral muscles (thighs) and abdominal circumference as well.[28] Exposure to maternal smoking in utero decreases the size of the infant’s liver, which likely accounts for the reduction in abdominal circumference. [29]
Maternal smoking during pregnancy also leads to lower infant birth weight because it alters the composition of the placenta by reducing the number of capillaries and thickening the membrane.[30] These changes to the placenta lead to an increased risk of a Cesarean section birth[31] and a decreased Apgar score, which is used to assess the health of the infant shortly after birth.[32] At birth, infants of maternal smokers also have higher cyanide levels and are malnourished because of depletion of vitamins C and B12.[33] Lastly, cigarette smoking significantly influences fetal heart rate characteristics,[34] and negatively impacts fetal heart rate reactivity.[35] These studies therefore indicate that maternal smoking during pregnancy results in lower birth weight of the infant, an increased risk of unnatural birth (C-section), and vitamin deficiencies.
3. Congenital Deformities
In addition to the negative effects mentioned above, maternal cigarette smoking during pregnancy leads to several other problems, including malformations apparent at birth. Such malformations include cleft palates, tumors of the central nervous system, and several different types of cancer.
Women who smoke during pregnancy are fifty to seventy-eight percent more likely to give birth to babies with cleft lips or palates than women who do not smoke during pregnancy.[36] There is also a statistically significant association between multiple malformations and maternal smoking, such as oral clefts, limb reduction defects, urinary organ malformations, and craniosystosis,[37] as well as an association between maternal smoking and congenital urinary tract anomalies.[38]
Similarly, active smoking by the mother during the first five weeks of pregnancy results in a greater risk of the child developing a tumor in the central nervous system.[39] Individuals exposed to maternal tobacco smoke in the womb are also at an increased risk for developing certain types of cancer at some point in their lives, because it is in utero that the cells are rapidly differentiating and may be more vulnerable.[40] Maternal smoking during pregnancy therefore causes several different types of congenital deformities in the infants exposed in utero.
4. Other Effects Caused by Maternal
Prenatal Smoking
Prenatal smoking results in several other effects in addition to congenital malformations. For example, the risk of transmission of HIV from mother to fetus is significantly increased among women who smoke during pregnancy.[41] In addition, because smoking impacts the placenta’s ability to implant and affects the blood flow in the uterine environment, pregnant women who smoke may experience an increased miscarriage rate as high as thirty-three percent.[42] The increased miscarriage rate among mothers who smoke may also be related to the “adverse effects of nicotine, cadmium and polyaromatic hydrocarbon” on the differentiating cells of the fetus.[43]
Furthermore, pregnant women who smoke experience shorter gestational periods, also likely due to placental complications.[44] Other byproducts, such as carbon monoxide and nicotine affect the fetus; carbon monoxide limits oxygen transfer to the placenta, while nicotine constricts the uterine arteries causing a constriction of oxygen to the living tissues.[45] It is therefore evident that fetal exposure to maternal smoking significantly impacts the development of the fetus, resulting in a range of physical abnormalities.
B. The Negative
Behavioral and Neurological Effects
In addition to negative physical effects, several studies have established that maternal tobacco smoking during pregnancy adversely affects cognitive development and the behavior of children and adolescents.[46] These studies determined that carbon monoxide and ingredients in tobacco tar directly affect the fetal brain.[47]
1. Intellectual Defects
Maternal smoking during pregnancy significantly impairs the intellectual development of the fetus, and the impairment continues throughout childhood. Children who were exposed to maternal smoking in utero often possess lower intelligence quotients (IQ), have decreased cognitive abilities, and experience difficulty with their speech and motor development.[48]
One study
examining the neurological effects of maternal smoking determined that a
relationship existed between children with low birth weight, often caused by
smoking, and IQ deficits.[49]
Another study found a difference of more than fifteen IQ points in favor
of children of nonsmoking mothers.[50] The intellectual superiority of the offspring
of the non-smoking mothers was apparent in the overall IQ score as well as the
verbal IQ score and performance IQ score.[51] As a result, the study concluded that
maternal smoking while pregnant significantly hinders the intellectual
development of the child.[52]
Children of mothers who smoked while pregnant often receive lower scores in overall cognitive function and language abilities.[53] In utero exposure to tobacco is also associated with motor, sensory and cognitive deficits in infants and toddlers, suggesting a “pervasive toxic effect of tobacco on early neurodevelopment.”[54] For example, scientists have linked a decrease in motor function, verbal comprehension, and auditory acuity to maternal smoking of more than fifteen cigarettes per day.[55] Similarly, linguistic abilities such as reading and spelling performance in children of early school age differ among siblings born to mothers who smoked during only one of their pregnancies, with the sibling exposed to smoking in utero performing worse with respect to spelling and reading in early school age. [56]
In addition, mothers who smoke ten or more cigarettes per day while pregnant almost double the risk of their eight-month-old infant being a “non-babbler.”[57] Children prenatally exposed to tobacco smoke also perform worse than children of non-smokers with respect to central auditory system processing.[58] Maternal smoking is therefore causally related to impaired intellectual function of exposed infants throughout childhood.
2.
Behavioral and Cognitive Function
In addition to interfering with intellectual function, exposure to nicotine in utero negatively affects the child’s behavior and cognitive functioning after birth. Maternal smoking is associated with a significant increase in “externalizing behavior problems” such as aggression and hyperactivity.[59] In addition, children of mothers who smoked during pregnancy often exhibit deficits in sustained attention, response inhibition and memory.[60] These behavioral and cognitive deficits associated with in utero exposure to tobacco appear to continue into late childhood and adolescence and lead to an increased risk for attention-deficit/hyperactivity disorder (ADHD) and conduct disorder (CD).[61] Furthermore, these children often experience an increased incidence of criminality in adulthood and tend to suffer from higher rates of substance abuse, alcohol abuse and depression when compared with unexposed children.[62]
Smoking during
pregnancy hinders the intellectual development of the child and leads to
neurological and behavioral problems throughout the child’s life. Maternal smoking during pregnancy has thus
arisen as a public health concern because of the numerous physical, behavioral,
and neurological consequences that result.
II.
The law has long recognized
that an individual who intentionally causes a harmful or offensive contact to
another individual is liable for battery.[63]
To establish a prima facie case for battery, the plaintiff must prove
that (a) the defendant acted with the intent to cause a harmful or offensive
contact, and (b) the contact actually occurred.[64] The plaintiff can satisfy the element of
intent if he can prove that the defendant knew or had reason to know that his
actions would result in a harmful or offensive contact.[65] This section will explore the extension of
the tort of battery to non-smokers against smokers for the offensive contact
resulting from secondary smoke.
The first major case applying battery jurisprudence to second-hand smoke was Leichtman v. WLW Jacor Communications, Inc.[66] Ahron Leichtman, an anti-smoking advocate, was to appear on a radio talk show to discuss the harmful effects of smoking and breathing secondary smoke.[67] While in the studio, a talk show host lit a cigar and repeatedly blew the smoke in Leichtman’s face. As a result of this incident, Leichtman sued to recover from the talk show host on the basis that his intentional act constituted a battery.[68]
In its analysis, the Ohio Court of Appeals stated, “contact which is offensive to a reasonable sense of personal dignity is offensive contact,”[69] and defined “offensive” to mean “disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness.”[70] The court then determined that tobacco smoke, as particulate matter, has the physical properties capable of making contact.[71] Because the talk show host intentionally blew cigar smoke in Leichtman’s face, the court found that he had committed a battery, noting that a battery is actionable no matter how trivial the incident.[72] The Ohio Court of Appeals therefore overruled the lower court’s granting of the defendant’s motion to dismiss on the claim of battery and remanded the case to the lower court for further proceedings.[73]
Similarly,
the Court of Appeals of
In its analysis, the court rejected Hennly's argument that pipe smoke is a substance so immaterial that it is incapable of being used to batter indirectly.[78] Instead, the court determined that it is no longer important that the contact is not brought about by a direct application of force such as a blow, but it is enough that the defendant sets “a force in motion which ultimately produces the result.”[79] The court concluded that pipe smoke is visible, detectable through the senses, and may be ingested or inhaled, therefore making it capable of "touching" or making contact with one's person in a number of ways.[80] Because the court found that Hennly acted with intent, it determined that the trial court erred in granting summary judgment for Hennly on the battery claim.[81]
Courts have long recognized that an individual who intentionally causes a harmful or offensive contact to another individual is liable for the tort of battery. [82] Both Leichtman and Richardson extended the tort of battery to allow the contact caused by the blowing or exhaling of smoke particulates to constitute a touching in cases where a smoker intentionally subjected another individual to second-hand smoke.
Even though these cases deal solely with environmental tobacco smoke, mothers who smoke while pregnant should be liable for battery to their unborn children for exposing their unborn children to the smoke particulates from cigarettes in the same manner. Exposure to environmental tobacco smoke and fetal exposure to maternal smoking both cause the same harmful consequences and should therefore be subject to the same legal remedies to those exposed. Furthermore, fetal exposure results in even more offensive and harmful consequences than environmental exposure since (a) the fetus is in the process of developing when it is exposed, (b) the fetus is connected to the mother’s body and therefore directly receives all of the harmful byproducts from the smoking, and (c) the fetus has no ability to avoid the exposure. The battery actions in both Leichtman and Hennly should therefore serve as a basis for fetal recovery in tort since the circumstances and effects are analogous.
III. Second-Hand Smoke and Custody Rights
In addition to tort actions for smoke exposure, the family court system has begun to consider parental smoking in weighing which parent should get custody in child custody proceedings. The law has long recognized that the “best interest of the child standard” should guide courts’ custody determinations.[83] In recent years, several courts have applied this standard to award custody to a parent who does not smoke over a parent who does, finding that it is in the children’s best interest to be in the smoke-free household.[84]
For example, in In the Matter of Samie J. Lizzio v. Deborah Lizzio,[85] the family court of Fulton County, New York, utilized the “best interest of the child” standard to determine whether it was in a child’s best interest to live with a parent who smoked cigarettes.[86] In this case, the mother and father had two children and later divorced.[87] The court originally awarded physical custody to the mother but granted visitation rights to the father.[88] After discovering that one of the children, Samuel, was asthmatic and therefore allergic to cigarette smoke, the father quit smoking but the mother refused and continued to smoke in the home.[89] The father brought the case in an attempt to gain physical custody of the two children.
The court acknowledged that the pivotal issue in the case was cigarette smoke.[90] It stated, “we are at a point in time when, in the opinion of this Judge, a parent or guardian could be prosecuted successfully for neglecting his or her child as a result of subjecting the infant to an atmosphere contaminated with health-destructive tobacco smoke.”[91] The court then granted physical custody to the father since he had “taken steps to protect his children’s health, and because he and his [new] wife ha[d] modified their own life-style to eliminate smoking from it.”[92] The court granted the mother visitation rights but prohibited her from tobacco smoking in the household.[93]
Similarly,
in Skidmore-Shafer v. Shafer,[94]
the Court of Civil Appeals of Alabama originally granted custody of the
children to the mother, finding that it was in the children’s best interests to
be with their mother. The father
petitioned the court for a change in custody stating that there had been a
material alteration in the circumstances warranting the change.[95] He explained that one of the children had a
history of upper respiratory infections and asthma, yet the mother ignored
instructions from the child’s doctor and continued to smoke one to two packs of
cigarettes a day in front of the child.[96]
In its reasoning, the court stated that
for the mother “to do this to a child is no less child abuse than if [she]
had deprived him of food or medical treatment.”[97] As a
result, the court agreed with the father that it was in the child’s best
interest to live with the father and granted him custody of both children to
prevent them from being exposed to the second-hand smoke.[98]
Lastly, in Unger v. Unger,[99] a father filed a motion for a plenary hearing to determine the effect of environmental tobacco smoke, and to reopen a custody determination.[100] In determining which parent was best suited for custody of the children, the Superior Court of New Jersey considered the effect of environmental tobacco smoke on the children’s safety and health.[101] The court explained, “in deciding child custody, the touchstone for the court's decision is the best interests of the child,” including the child’s health and safety.[102] As a result, the court stated that it could consider the parental habit of smoking cigarettes when determining what was in the best interests of the children.[103] The court determined that the cigarette smoke was causing the children to cough and experience a shortness of breath.[104] It stated, that while no court in New Jersey had found that the right to smoke had risen to the level of a constitutionally protected right, even a parent's constitutionally protected right may be restricted upon a showing that the parent's activity may tend to impair the physical health of the child.[105] Because the court wanted to wait for a report from a psychologist before making any custody change determinations, it decided to leave custody of the children with the mother.[106] However, the court prohibited her from smoking in the home or car with the children and ten hours before the children were to arrive.[107]
In
all three of these cases, the courts considered the negative effects of
cigarette smoke when making their custody determinations, establishing a
standard that allowed them to consider a parent’s smoking habits when deciding
which home furthers the child’s best interest.[108] The
courts in these cases all recognized the negative impact that cigarette smoke
was having on the health and safety of the children and took affirmative action
to protect them.[109] These negative health effects can be directly
analogized to those experienced by the fetus from prenatal smoking, as
described in Section I, supra. As such, the courts and the state should be
able to take affirmative action against mothers who expose their unborn
children to the harmful byproducts of cigarettes, just as they did in the above
cases for mothers who were exposing their children to second-hand smoke. As is shown below, courts have already begun
to allow recovery for prenatal injury from third parties and the child’s mother.
IV. Civil Penalties and Criminal Prosecution
It is a well-accepted
principle in American law that a civil cause of action can be maintained for
prenatal injury, at least when the injury is to a viable fetus later born
alive.[110] Individuals have successfully recovered for
cases of prenatal injury in tort law, and mothers who abused substances while
pregnant have faced criminal prosecution and repercussions in family law. This section analyzes the cases and laws
responsible for setting these standards.
A. Penalties in Tort Law Available to
Infants for Injury Sustained While In Utero
Courts have heard tort claims
for fetal injury for more than five decades, including claims such as medical
malpractice and parental negligence.[111] As discussed below, courts have grappled to
determine when the child’s rights begin in order to make decisions regarding
recovery in tort for prenatal injury. The legislatures of some states, like
In order to
circumvent any confusion that may arise as to the issue of a child’s rights to
recover for prenatal injury,
In most
jurisdictions, the court system rather than the legislature has tackled this
issue. In the seminal case Bonbrest v. Kotz,[114]
the U.S. District Court for the
If a child after birth has no right of action for prenatal injuries, we have a wrong inflicted for which there is no remedy. If a right of action were denied to the child it will be compelled, without any fault on its part, to go through life carrying the seal of another's fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor. To my mind it is but natural justice that a child, if born alive and viable should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.[117]
As a result, the court granted the child the rights he needed to recover for prenatal injury.
Similarly, in Smith v. Brennan,[118] a father, on behalf of his son, instituted a negligence cause of action for his son’s prenatal injury.[119] The father alleged that his infant son, while in his mother’s womb, was injured in an accident caused by the defendant’s negligent driving, and that his son’s legs and feet were deformed at birth as a result.[120] The Smith court reasoned that
conception sets in motion biological processes which…will produce…a person in being…It is immaterial whether before birth the child is considered a person in being…Justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body. If the wrongful conduct of another interferes with that right, and…there is a causal connection between the wrongful interference and the harm suffered by the child when born, damages for such harm should be recoverable by the child.[121]
Finding no reason to deny recovery for a prenatal injury simply because it occurred before the infant was capable of separate existence, the court held that the infant could recover.[122]
While the above cases dealt with the infant’s ability to recover for prenatal injuries inflicted by a third party, courts have also begun to allow infants to recover for prenatal injuries actually inflicted by their mother.[123] For example, in Grodin v. Grodin,[124] the Michigan Court of Appeals extended the idea of maternal-child compensation to the fetus by allowing the child to sue his mother for damages sustained while in utero.[125] In Grodin, the court determined that the child could sue his mother for negligence for taking tetracycline while she was pregnant, which caused a discoloration of the child’s teeth.[126] The court balanced the fetus’s “legal right to begin life with a sound mind and body” against the mother’s “reasonable exercise of parental discretion” in taking the tetracycline while pregnant.[127] In doing so, the court established a standard in tort law allowing the fetus’s right of well-being to be considered independent of his mother’s right to privacy and bodily integrity.[128]
The court in In re Baby X[129] further expanded the scope of civil
liability, setting precedent by holding a mother liable for the injuries caused
to the fetus by her substance abuse while pregnant.[130] The child was born with narcotic withdrawal
symptoms because of the mother’s substance abuse during pregnancy.[131] The
court determined that the newborn was properly a neglected child within the
jurisdiction of the probate court, since the fetus had a right to begin life
with a sound mind and body and prenatal neglect was probative of postnatal
neglect.[132] Courts in
All
of the above-mentioned cases expanded the scope of tort law making it possible
for an infant to recover for an injury sustained while in utero. In addition to those cases, the state supreme
courts of
B. Criminal
Prosecution of Mothers for Causing Prenatal Injury
In addition to civil penalties, mothers have also been criminally prosecuted for causing injury to their unborn children. The legal status of a fetus under criminal common law has usually been the “born alive” rule – that the crime of murder can only occur when a fetus suffering harm in its mother’s womb was born alive and then subsequently died.[137] While this remains the standard for criminal liability in most states, the growing acceptance of fetal rights in the context of tort has carried over into the criminal context.[138]
The California Court of Appeals was the first court to ease the live birth requirement. In People v. Chavez,[139] the court found a fetus to be a person for the purposes of homicide law during the birth process, without requiring that the fetus be fully expelled from the birth canal.[140] In Chavez, a woman gave birth unattended, allowed the infant to lie in water for several minutes, and then left the infant alone without tying its umbilical cord.[141] The infant later died, and the mother was charged in the infant’s death.[142] In holding the mother guilty of manslaughter for the death of her newborn due to negligence during birth, the court relied on scientific testimony regarding the possibility that the fetus could have had a separate existence before it was born.[143]
Recently,
courts extended this standard to cases involving substance abuse. In 1996, Deborah Zimmerman became the first
woman in the
One
year later, the South Carolina Supreme Court became the first state supreme court
in the nation to clear the way for criminal prosecution of mothers for abusive
prenatal conduct that endangers the fetus.[153]
In Whitner v. State,[154]
the court reversed the lower court’s decision, which held that a mother could
not be found guilty of criminal child neglect for ingesting crack cocaine
during her third trimester, causing her baby to be born with cocaine
metabolites in its system.[155] The court stated that the “abuse or neglect
of a child at any time during childhood can exact a profound toll on the child
herself as well as on society as a whole…the consequences of abuse or neglect
which takes place after birth often pale in comparison to those resulting from
abuse suffered by the viable fetus before birth.”[156] As a result, the court concluded that
Courts
have also required pregnant mothers who are substance abusers to be tested for narcotics
and have detained women who test positive.[158]
In the early 1980s, a
In
addition, several states have enacted fetal protection statutes in an attempt
to eradicate the harmful effects to a fetus resulting from the substance
addiction of the mother. For example,
V. Proposed Legal Remedies to
Compensate Children for Prenatal Exposure to Maternal Cigarette Smoke
There is a clear and undeniable link between gestational tobacco smoking and egregious effects on children.[166] Even though smoking during pregnancy is the single most preventable cause of illness and death among mothers and infants,[167] tobacco use occurs in about 25% of all pregnancies in this country.[168] Furthermore, research shows that 60% of women who smoke do not stop smoking when they get pregnant.[169] In light of the adverse effects to the fetus caused by maternal tobacco use during pregnancy, and the similarity between the prenatal harm cases and those that are currently solved by the courts, legal intervention is essential to protect the fetus from such harm. This section focuses on the use of the legal system to deter maternal smoking during pregnancy. It proposes that women’s legal right to smoke cigarettes should end when their behavior affects the health and well-being of their unborn children, individuals who are defenseless against the potential harmful effects of exposure to tobacco smoke because they are in utero. Because maternal smoking during pregnancy has devastating impacts, holding the actors liable will positively affect children’s growth and development.[170]
A. Liability in Tort
As described above, children have been able to recover in tort suits against third parties, including their mothers, for injuries sustained while in utero.[171] Given that courts have allowed infants to recover for injuries as minor as tooth discoloration,[172] infants should certainly have a legal remedy for the more serious prenatal injuries caused by a mother’s tobacco use during pregnancy.
As established
above, infants have a legal right to be born with sound mind and body. The court must weigh this right against the
mother’s reasonable exercise of parental discretion. It should determine, however, that any parent
who participates in an activity knowing it will cause harm to her child has not
acted reasonably. Since maternal smoking
causes harm to the child, the mother’s unreasonable decision to engage in such
an activity should create a right for exposed fetuses to recover damages under
tort law for battery and negligence.
1.
The requisite
intent for battery can most readily be established in situations where a
physician or clinic has explained the harmful effects of prenatal smoking to a
woman. If the woman then smokes during
pregnancy, she should be held to have the requisite intent for battery since
she has already been notified of the devastating consequences of her actions. Even if a woman finds that she is addicted
and cannot stop smoking, if she fails to seek help for her addiction she should
be held liable for exposing her unborn child to the harmful byproducts of tobacco
smoke and for interfering with her fetus’s right to healthy development. As was established in Leichtman[177] and Richardson,[178] individuals may be charged with the
intent to commit a battery when they are aware that the recipient will find their
conduct harmful or offensive. In Leichtman, the court determined that
Furman had the requisite intent when he blew smoke in Leichtman’s face, because
he was aware that Leichtman was an anti-smoking advocate and would therefore find
a stream of continuous smoke to be offensive.[179] Similarly, in
While the fetus is not able to voice its concern, there is certainly an abundance of research to demonstrate that tobacco is harmful enough to the fetus to find that the mother possessed the requisite intent.[181] As a result of smoking tobacco while pregnant, the mother intentionally robs the fetus of its right to be born with sound mind and body, without physical, neurological or behavioral defects. The causal link between tobacco exposure and harm to the fetus is strong enough that the mother’s smoking should constitute offensive behavior.[182]
The plaintiff must
next prove that a harmful or offensive contact has occurred. As established in Leichtman and Richardson, smoke
from tobacco products is composed of particles capable of making contact.[183] Because the courts in both cases found that
the recipient’s contact with the smoke was offensive enough to constitute
battery, courts should find that a developing fetus’s contact with smoke is at
least as offensive and even more harmful.
As was explained above, fetal exposure to tobacco byproducts results in
physical, neurological and behavioral defects and can even result in death.[184] Contact with cigarette smoke is even more
invasive for the fetus than it is for adults like Leichtman and
2. Negligence
In addition to a remedy in tort for battery, an individual should also be able to bring a negligence action for prenatal injury. To establish an action for negligence, a plaintiff must prove that (a) the defendant owed him a duty, (b) the defendant breached that duty, (c) the plaintiff was harmed as a result, and (d) the defendant’s breach was the reason for the plaintiff’s harm.[185] An infant should be able to prove that his mother acted negligently in cases where an infant suffered prenatal injury from the mother’s smoking while pregnant.
A mother has the duty to assure that she does not interfere with the right of the fetus to be born with sound mind and body.[186] The pregnant woman breaches this duty by choosing to smoke, subjecting her fetus to carbon monoxide, nicotine, and the other harmful byproducts of tobacco. Because of the abundance of research available to the public, physician testimony should be able to establish that the infant was in fact harmed and that the mother’s smoking caused the harm. While the infant may have developed a condition without prenatal exposure to maternal smoking, the fact that the fetus’s mother subjected it to increased risk should be enough to establish harm.[187] Lastly, it should follow that the mother’s failure to assure the fetus’s sound mind and body resulted in the harm. As a result, infants exposed to tobacco smoke in utero should be able to recover for negligence against their mothers.
Because of the increasing willingness of courts to allow infant recovery in tort as a result of prenatal harm, infants exposed to tobacco in utero should be afforded the ability to recover in tort. Their right to be born with sound mind and body should be protected by family law courts as well.
B. Liability in Family Law
Because family courts are responsible for protecting a child’s best interests, they should employ all of the tools available to eliminate fetuses’ prenatal tobacco exposure. To give effect to this goal, those courts should consider the child’s possible exposure to tobacco smoke in custody determinations and neglect proceedings because of tobacco’s great potential to cause harm.
1. Custody Determinations
As explained above, parental cigarette smoking habits have influenced courts’ custody decisions in situations where parents are divorced. In both Lizzio[188] and Unger,[189] the court found that parental cigarette smoking was against the child’s best interest since the smoke negatively affected the child. This rule should be extended to all prenatal maternal smoking cases since the fetuses are inevitably affected. As was described above, prenatal cigarette smoking results in devastating consequences to the fetus. Because of the gravity of the harm, courts should be able to protect the health and safety of the unborn child.
It will always be safer for a fetus to develop in a womb without exposure to cigarette smoke than in one exposed to cigarette smoke.[190] Because of this fact, the CDC recommends that all pregnant women be screened for smoking at their first prenatal care visit and throughout their pregnancy.[191] The CDC then recommends that doctors counsel pregnant smokers to stop smoking, and that they provide cessation medication when the benefits outweigh the costs.[192] Clinics for poor women can implement these procedures as well. Both of these procedures can assist women who suffer from addiction and can help educate women who were unaware of the devastating effects of tobacco smoking while pregnant. However, family courts should be able to enjoin women who refuse or cannot stop smoking after such counseling, just as they enjoined the mothers in Lizzio and Unger from smoking in areas that might expose the children to the smoke.[193] If a pregnant woman still cannot stop, the courts should be able to use this smoking as evidence that she does not care enough about the health and safety of her child and should be able to place the child, after he is born, in the custody of another relative who does not smoke. In cases of divorce, the probate courts should use the mother’s prenatal smoking as evidence against her in custody hearings.[194] In order to serve the child’s best interests, it is important for family courts to eliminate fetal exposure to tobacco smoke whenever possible.
2. Neglect
As was determined by In re Baby X,[195] a mother can be held liable to her child for injuries sustained as a result of her substance abuse while pregnant. The court in Baby X held that an infant born with the negative effects of exposure to substance abuse can be considered a neglected child and that the prenatal abuse can be probative of postnatal abuse as well.[196] The court based its holding on the fact that by ingesting narcotics while pregnant, the mother interfered with the fetus’s right to be born with sound mind and body.[197]
Given the negative
effects of exposure to maternal tobacco use on fetuses, it follows that infants
exposed to tobacco in utero should also be characterized as neglected children
at birth. While tobacco is not an
illegal substance, the court in Baby X
relied on the substance’s negative effects rather than its illegality in its
holding.[198] Therefore, the fact that tobacco is a legal
substance should not prevent courts from extending the Baby X reasoning to cases where a fetus is injured as a result of
maternal smoking while pregnant.
Instead, it is key that ingesting tobacco during pregnancy undoubtedly interferes
with the fetus’s right to be born with sound mind and body. Likewise, a court should be able to find that
the mother’s prenatal abuse and indifference towards causing harm to her child are
indicative of postnatal abuse. This determination should be even stronger in
cases where a physician explicitly warns the mother of the harm she is causing
to the child by smoking. In instances
where a child’s representative brings a neglect proceeding, the physician
records or testimony should be admissible in court as they were in Baby X.[199] Women
should therefore be held civilly liable for prenatal injury.
C. Criminal Prosecution
Women should also be subjected to criminal prosecution for causing prenatal injury to their unborn children. States currently criminally prosecute women for purposely harming their children after the children are born. Because tobacco exposure in utero continues to affect the child throughout his life, states should criminally prosecute women for harming their fetus with tobacco as they have done for harming the fetus with other substances.
1. Reckless Injury, Abuse and
Neglect
Because of the increased risk of deformity and defects in children whose mothers smoke while pregnant, states should charge smoking mothers with causing reckless injury as the state did with Deborah Zimmerman,[200] and with abuse and neglect as the state did in Whitner.[201] Both of these cases involved the ingestion of substances considered toxic to a fetus - alcohol and cocaine. In both cases, the substances negatively caused the infants to be unhealthy at birth. As a result, the holdings in both cases expanded the scope of criminal liability to include the prenatal injury, abuse and neglect of these infants.[202]
Because tobacco exposure causes similar harm to the fetus and makes it likely that the infant will experience defects or disabilities, states should also be able to charge mothers with reckless injury, abuse, and neglect when the cause of such harm is tobacco rather than alcohol or cocaine. Like alcohol, tobacco is a legal substance that severely impairs the fetus’s development and causes the infant to experience withdrawal symptoms. Because alcohol, cocaine and tobacco all affect the fetus in a similar manner, a mother should face the same criminal liability for smoking tobacco while pregnant as she would for drinking alcohol or ingesting cocaine.
As several states have done for other harmful substances,[203] mothers testing positive for tobacco use at doctor’s visits should be enjoined from further use and should have to submit to urine analysis testing.[204] If a pregnant woman continues to test positive for tobacco use, the court should sentence her to time at a rehabilitation facility to ensure that her child develops normally. In doing so, the courts can more effectively protect the development of the fetus and deter other women from smoking cigarettes while pregnant.
2. Attempted Murder
Given the
increased risk of spontaneous abortion and sudden infant death syndrome caused
by maternal prenatal smoking, states should have the ability to charge pregnant
women who smoke with attempted murder, as the state did with Deborah Zimmerman
when she consumed an abundance of alcohol.[205] If the
state can determine through physician testimony and records that (a) the
pregnant woman’s doctor previously warned her that her consumption of tobacco
posed a risk of death to her unborn child, and that (b) the woman failed to
seek help if addicted, the state should be able to charge the woman with
attempted murder. Because of the strength
of the available scientific research, if a physician warns a pregnant woman
that her unborn child is at risk for spontaneous abortion or SIDS, she should
be punished for her ongoing harmful behavior.
While
these remedies may appear harsh, the effects of tobacco on fetal and infant
development are too severe to continue unabated. These remedies may protect the development of
the fetus, help to deter tobacco use among pregnant women in the future, and
therefore reduce or eliminate tobacco-related injuries to fetuses and infants. While the courts must examine the rights of
the mother before they decide to protect the rights of the fetus, the courts
should be able to determine that the right of the fetus to be born healthy
supersedes the mother’s right to smoke, as will be discussed below.
VI. Women’s Rights to Privacy, Bodily Integrity, and Parental Autonomy
Cases of prenatal injury involve an inherent conflict between the rights of the mother and the rights of the fetus. As such, before courts can resolve a prenatal injury case in the civil context, and before states can charge a woman in the criminal context, the rights of both parties must be weighed. While fetuses have a right to develop free of toxic substances, mothers have rights to privacy, bodily integrity, and parental autonomy. The conflict of these rights is discussed below.
A. The Right to Privacy and Bodily
Integrity
Cases of prenatal injury involve an inherent conflict between a mother’s right to pursue the lifestyle of her choice and thus smoke, and the fetus’s right to be free from cigarette smoke’s damaging substances.[206] Prosecuting women for their behavior during pregnancy implicates the rights to privacy and bodily integrity first established by the Supreme Court in Griswold v. Connecticut,[207] where the Supreme Court declared unconstitutional a statute prohibiting married couples from using contraception by reasoning that certain personal decisions deserved constitutional protections through the right of privacy.[208] While it is clear that women have a right to privacy and bodily integrity, the Supreme Court’s recognition in Roe v. Wade[209] of the state’s interest in protecting the fetus opened the door to state intervention in these types of fetal injury cases.[210] The Supreme Court in Roe stated that “the right to do with one’s body as it pleases” is not unlimited and must be balanced against important state interests.[211] The Supreme Court then acknowledged that the state has a “compelling” interest in the fetus once it becomes viable such that a woman’s fundamental right to privacy – to have an abortion performed – can be denied after the second trimester of pregnancy unless it is necessary to save the health or life of the mother.[212]
While the mother has a right to privacy and bodily integrity, it is actually the mother’s right to smoke that collides with the state’s compelling interest in protecting the life of the fetus in cases of fetal injury caused by prenatal smoking.[213] State intervention during pregnancy is constitutional where the state interest in protecting the fetus outweighs the constitutional rights of the pregnant woman.[214] However, women do not have a fundamental right to smoke but only the mere privilege of doing so.[215] Because the state has a compelling interest in protecting the life of the fetus, this interest should be strong enough to supercede the woman’s right to smoke in fetal injury cases.[216]
In addition, both Roe and Griswold have been interpreted as granting individuals a right of
personal autonomy to do certain acts as long as there is no harm to others.[217] As discussed in Section I, supra, a pregnant woman’s decision to
smoke clearly harms the fetus, which should be enough to infringe upon the woman’s
right to personal autonomy and implicate the state’s interest in protecting the
fetus. In addition, since the state is
able to deny a woman her right to an abortion in some instances, the state
should certainly have the power to restrict a woman’s non-fundamental right to
smoke when the smoking presents a serious risk of injury to the fetus.[218] While women certainly have a right to privacy
and bodily integrity, their right to smoke while pregnant should not be strong
enough to overcome the state’s compelling interest in protecting the life of
the fetus once the mother decides to keep the child.
B. The Right of
Parental Autonomy
In addition to women’s right to privacy and bodily integrity, women also have the right to control the upbringing and education of their children, as established in Meyer v. Nebraska[219] and Pierce v. Society of Sisters[220] by the Supreme Court.[221] By extension, therefore, parents might also have the right to control the upbringing of their unborn children and prevent state interference to protect the health and safety of the fetus.[222] However, the concept of parental autonomy does not exempt parents from state interference but instead encompasses positive duties for the benefit of the unborn child.[223] For example, “the parent’s duty to provide necessary medical care includes the duty to provide essential prenatal therapy when a live birth is expected.”[224] Because a woman has a duty to provide the necessary care for her child, the state’s interest in protecting the child when the woman fails to do so is consistent with the woman’s right to parental autonomy.
Several
cases have established that the state can interfere with the right of parental
autonomy in situations where the health of the child is at stake. In Custody
of a Minor,[225]
a judge ordered that a child with
acute lymphocytic leukemia undergo chemotherapeutic treatments, even though the
child’s parents were opposed to the treatment.[226] The court further ordered that the parents stop
giving the child laetrile,[227]
large doses of vitamins A and C, enzyme enemas, and folic acid, a combination
they were using in an attempt to cure their child.[228] The court granted legal custody of the child
to the Department of Public Welfare to ensure that the child received
chemotherapy, and stated that the parents' custody of the child was restricted
to the extent necessary to ensure medical supervision consistent with the
order.[229] Similarly, in In the Matter of Elisha McCauley,[230]
a
Because these
cases demonstrate that the state has the ability to override the right of
parental autonomy to make medical decisions on behalf of minor children, a
woman’s right to parental autonomy should not erect a barrier to the proposed
legal remedies in Section V.
VII. Conclusion
Prenatal maternal cigarette
smoking hinders the physical, neurological, and intellectual development of the
fetus and can even result in death. These
adverse effects in conjunction with the increasing public awareness of these effects
make legal intervention essential to protect the fetus from such harm. As a result, the mother’s right to smoke
should end when her behavior affects the health and well-being of others - when
she becomes pregnant and decides to carry the fetus to term. To protect the fetus’s right to be born with sound
mind and body, infants should be able to sue their mothers in tort for battery
and negligence for prenatal harm, and states should hold women criminally
liable for ignoring physician’s orders to prevent future harm to the fetus. Such intervention will hopefully have a
significantly beneficial impact on fetus’s growth and development and will help
women lead healthier lifestyles that protect their unborn children from future
harm.