When Regina McKnight, of South Carolina, went to her local hospital to give birth in May 1999, she prayed that the baby would be healthy. She had good reason to worry. Since her mother had been killed by a hit-and-run driver the previous year McKnight had begun smoking crack. She was naturally devastated when the baby was stillborn - and shocked, five months later, to be charged with homicide. Prosecutors argued that smoking crack had caused the stillbirth and that McKnight should therefore be classed as a murderer.
Despite medically disputed evidence about the role cocaine had played in the tragedy, McKnight went on to become the first woman in US history to be convicted of foetal homicide by child abuse. An appeal to the US Supreme Court failed and she is serving a 12-year jail term.
In the US, more than 20 states now define drug use by an expectant mother as child abuse, neglect or even torture, while The Unborn Victims of Violence Act, passed by Congress in 2004, argues that foetuses are separate persons under the law, with rights independent of the pregnant woman. Any aspect of a pregnant woman's behaviour that might risk foetal health - except of course abortion - is therefore open to punishment in the courts. And last May, legislators in Arkansas proposed making it, not just a matter of social and moral oppobrium, but an offence worthy of prosecution for a pregnant woman to smoke a single cigarette.
New federal guidelines issued this year ask any woman capable of conceiving to treat themselves - and to be treated by their health-care provider - as "pre-pregnant" at all times. Women between their first menstrual period and the menopause are told to take folic acid supplements, stop smoking, stop drinking regularly, maintain a healthy weight and keep chronic conditions such as asthma and diabetes under control; not primarily for their own health but to protect any baby that they may or may not be planning to have. They're also advised to steer clear of lead-based paint and cat faeces - a problem for any "pre-pregnant" folk whose household chores include cleaning the litter tray. There is no mention of "pre- fertilisers", ie, fathers, taking similar steps to ensure their sperm are healthy, despite studies that suggest male alcoholism can cause birth defects in children.
The rationale for the guidelines is that half of all pregnancies are unplanned and that the US has a higher infant mortality rate than most other industrialised nations. At the moment there is no talk of criminal sanctions against women who fail to comply with the pre-pregnancy guidance but it's another worrying sign that US women are expected to treat themselves as incubators first, individuals second. And the onward march of foetal harm legislation suggests that it's not entirely Orwellian to suspect that women might, in future, be criminalised for any indulgent behaviour before a pregnancy - as well as during - that ends up harming their child.
Lynn Paltrow, executive director of the New York-based group, National Advocates for Pregnant Women, believes that hatred of women is at the root of the trend. "It's linked to 30 years of vicious anti-abortion rhetoric that describes women who terminate pregnancies as murderers," she says. "You can't have that level of hateful rhetoric and just limit it to abortion. Once pregnant women are seen as capable of heinous crimes like murder, they are dehumanised."
Of course, it's obviously far better for a developing foetus if an expectant mother gives up drinking, smoking and taking drugs. But while it seems no expense is spared to prosecute and jail women addicts, far too little is spent on getting them appropriate treatment. And the women involved in these cases are almost always those most in need of support - there have been no stories of children dragged from rich Manhattan mothers who choose to snort a few lines of coke before breakfast. Those targeted are disproportionately black and poor. And all the sound and fury about the highly prized foetus evaporates once it is no longer in utero: children of drug-addicted mothers are often dumped in foster placements, where study after study has shown they have little chance of thriving.
This attitude to pregnant women shows signs of crossing the Atlantic. The behaviour of expectant mothers has never been more closely scrutinised or criticised, with both Kate Garraway and Kerry Katona having been attacked by the tabloids in recent months after being pictured with a cigarette plus baby bump. And some sources have proposed measures that aim to ensure that transgressive women can't conceive. In a recent paper, Professor Neil McKeganey of Glasgow University, a specialist in the social effects of drug misuse, suggested that "paying female drug users to use long-term contraception is one ... incentive that we may need to consider if we fail to reduce the level of unwanted pregnancies by drug users by other means". In a separate development, Labour MSP Duncan McNeil has proposed adding oral contraceptive to prescription methadone.
Dr Mary Hepburn, who runs the Glasgow Women's Reproductive Health Service supports women with social problems during pregnancy and after birth. What she finds most disturbing is the blanket condemnation applied to drug-using mothers.
"The gap between the rich and the poor is growing," she says, "and so is the gap between the poor and the very poor. A lot of the problems the women I work with experience are caused by poverty rather than by drugs in isolation. A punitive approach towards them will drive them underground, which won't be good for them or their babies."
When it comes to drug- or alcohol-addicted expectant mothers, obviously the ideal way forward is for them to seek treatment. Even for the richest people, addiction is supremely difficult to tackle, but for those from the lowest socio-economic groups the depredations that have led to them becoming drug-users generally make it extremely hard for them to give up. In the current US climate, though, the punitive approach towards pregnant women - in which women have been dragged to prison cells, hours after giving birth to a healthy baby, still haemorrhaging but having tested positive for drugs - means that few are likely to seek treatment. Who would take that risk if it meant the possibility of prosecution, a jail term and your child being removed from your care?
As Paltrow says: "The US has a phenomenal disregard for the wellbeing of families. Almost every problem is seen as one of personal responsibility rather than social or community responsibility." And the punitive approach to pregnant mothers emphasises this, legislating against women who might otherwise seek help for their personal problems.
In the last couple of decades laws targeting some of the US's most vulnerable women have crept inexorably, state by state, across the country, and now the institution of pre-pregnancy guidelines brings the spectre of women facing even wider punishment. In the UK we need to be vigilant to ensure that, in similar situations, pregnant women receive support - rather than a prison sentence.
