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Punishing pregnant women won't help

Recent reports indicate that the legislature has passed a second reading of a draft amendment to the Tobacco Hazards Prevention Act (菸害防制法) that would bar women from smoking while pregnant. It is very possible that the ban will come with a penalty. However, whether this will have any effect remains doubtful.

Because the birth rate is declining, the government is passing various regulations in hopes of raising the birth rate or protecting the health of unborn children.

Last year, an amendment to the Genetic Health Law (優生保健法) -- which said that women considering having an abortion should undergo a three-day waiting period for reflection -- drew sharp criticism.

Beginning this year, pregnant women will be required to undergo an AIDS test and now a law may prohibit pregnant women from smoking. These measures are part of a trend: the government's plan is to put all the responsibility of the health of children on the mother through the imposition of penalties.

This is not a well-thought out plan. It attempts to fix problems by papering them over instead of addressing the root causes. The measures are based on the conclusion that fetuses cannot protect themselves and therefore the government must ensure their safety by punishing any mother who harms them.

The relationship between a pregnant woman and her child is not one of two independent people. Instead, it is a highly interdependent relationship between the provider and her charge. In other words, the fetus is unable to exist without its mother providing it with nutrition, removing toxins and receiving regular obstetric exams to uncover any problems. At the same time, the fetus can cause injury to the mother through a miscarriage or delivery complications.

Given that a fetus depends on its mother, threatening a mother with penalties could have negative consequences. Some women do behave irresponsibly while pregnant. In order to avoid being penalized, they might choose not to have obstetric examinations so that their smoking or drug use would not be discovered.

It is not easy to tell whether a pregnant woman has been smoking. In the past, officials at the Department of Health have encouraged people to photograph pregnant women smoking as evidence.

During the first trimester, it usually is not clear that a woman is pregnant. Once she is in the later stages of pregnancy, if a woman is standing by the side of the road smoking, what will taking a photograph accomplish? Without a system for compulsory pregnancy tests, how can we prove she was pregnant? Even with mandatory testing, what legal basis would there be to force photographed women to undergo a health examination?

Infertility and child deformities can also be caused by men who drink and smoke. If we follow the government's logic, smoking and drinking should be banned altogether.

Because the government is ignoriing these problems, the inability to enforce the ban on smoking for pregnant women means that the amendment would be nothing more than a symbolic written expression of opposition to smoking while pregnant. This is hardly an an effective use of tax money and time.

Protecting unborn children by threatening their mothers with penalties is nonsense. If we want to boost the declining birth rate, we should first work to improve the factors that discourage people from having children. Implementing policies with incentives to encourage people to get married and have children is the only effective method.

Carol Lin is an assistant professor at the Institute of Technology Law at National Chiao-Tung University.

Translated by Marc Langer
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