17 September 2014. There are property rights, rights of way, right of free speech, and there is the right to life. But do we have a right to develop a brain? Legal scholar Laura Westra takes up this issue in her new book, Child Law. She highlights the “intractable conflict” caused by the U.S. Supreme Court Decision that a mother’s right to privacy supersedes the child’s right to life before birth. This decision results in a clash with the obvious right of a child to begin life with a sound mind and body, the right to be well-born. Dr. Westra notes that legal scholars profusely cite the Roe v. Wade decision in 1973. However, the same sources avoid discussing the clear lack of logic when it is possible for a child to sue the mother for prebirth negligence (such as maternal alcohol drinking).
This hiatus is unfortunate and also serious. If the mother’s right to privacy supersedes the child’s right to life, then she can grant the fetus a “stay of execution” (in Dr. Westra’s words). But does it then matter, in legal terms, whether the child is well-born and with an optimally functioning brain? More specifically, does the unborn child have a right in regard to optimal brain development undisturbed by toxic substances?
This question also relates to third parties, who may be responsible for chemicals entering a woman’s body and causing chemical brain drain in her child. Further complicating this question, corporations in some regards have acquired “personhood” with an array of rights and privileges, of which the fetus has few, if any. This conundrum was recently illustrated in the US by the so-called Monsanto Protection Act that offered a giant chemical company legal protection against litigation. As discussed in detail by philosophy professor Carl Cranor in his book Legally poisoned, current legislation is woefully inadequate in regard to protecting children against toxic chemicals. So why is there no such thing as a Brain Development Protection Act? These legal questions are unresolved and have clearly been ignored for too long. Westra’s new book rightly calls for a thorough examination of our collective obligations to the next generation and the next generation’s brains.