Dershowitz on Prenatal Rights

I am writing not so much to disagree with Dershowitz as to spotlight the Pandora’s box he and others are opening.

It is a regrettable fact of nature that a small percentage of babies are born with birth defects or with central nervous system damage, regardless of the mother’s behavior during pregnancy. This percentage can be expected to rise as we continue to poison our water, air and food with carcinogens and teratogens. In such events, it is usually impossible to discover the cause, and it is probably fallacious even to assume that there is a cause.

What, then, when the state has mandated against abuse of the fetus by a pregnant woman? Will this be civil or criminal law? If a child is born impaired, what is to prevent attorneys from bringing suit and holding the mother liable? Will the state ever be able to prove, beyond a resonable doubt, that the mother abused the fetus? Will the mother have to prove, to the satisfaction of a judge or jury, that she did not?

We know how unprepared our legal system is to deal with claims of liability against the government in such instances as Agent Orange or radiation exposure, or against corporations in such instances as asbestosis or the Dalkon shield. Many will agree with Dershowitz that the state has an interest in protecting unborn babies from intrauterine abuse, but it will take many years and much new law to extricate ourselves from the quagmire toward which we are headed.

LEE H. KRONENBERG

San Diego