The main debate concerns two varying opinions of how situations in which fetuses are exposed to varying risks should be dealt with by society. Questions concerning the liability pregnant women face for subjecting their unborn children to risk have yet to be addressed. For example, should women subjecting their children to the increased risks of multiple births as a result of the use of fertility drugs be tried for child endangerment, much like women who use illegal drugs during pregnancy in states such as South Carolina? Issues such as these have not been properly clarified in many states.
Jean Toal, in Majority Opinion, Cornelia Whitner, Respondent v. State of South Carolina, Petitioner (July 15, 1997), argues that the state legislature of South Carolina has the right to charge pregnant drug-using women for the additional risks their drug use poses on their unborn children. Law professor Alexander Morgan Capron, on the other hand, opposes the conclusion reached by the South Carolina Supreme Court. He argues that this ruling sets a precedent that can be widely extended to include punishing pregnant women for partaking in legal behaviors such as taking fertility medication, smoking, and drinking, all of which can cause harm to the fetus.
In writing the Majority Opinion in the case of Cornelia Whitner, Respondent v. State of South Carolina, Petitioner (July 15, 1997), Jean Toal begins her argument by stating "[t]his case concerns the scope of the child abuse and endangerment statute in the South Carolina Children's Code" and continues, "[w]e hold the word 'child' as used in that statute includes viable fetuses." She states the argument presented by Cornelia Whitner's attorney that a viable fetus does not constitute a separate entity from that of its mother under South Carolina law was found by the court to be " 'unsound, illogical and unjust.' " In reaching that conclusion, the court decided that since actions resulting in the death of a viable fetus by others are actionable under the law, the mother herself can be convicted of putting her unborn child at risk of harm.
Furthermore, in cases such as this, the interest of the state in the welfare of the child supercedes the right to privacy of the mother. Alexander Morgan Capron, however, opposes the South Carolina Supreme Court decision in his essay "Punishing Mothers." He states that the South Carolina Supreme Court does not address the issue of mothers giving informed consent for the tests required to determine whether or not the fetus was subjected to undue risks. In other words, he is invoking the mother's right to privacy. He also states concerns that laws such as the South Carolina law used to indict Cornelia Whitner can easily be extended to include mothers subjecting their fetuses to unnecessary risk by legal means, as mentioned earlier. He feels the interpretation of the law in the South Carolina Supreme Court ruling jeopardizes the right to privacy of pregnant women.
Key words to understanding the argument: viable fetus and maternal liability. Under South Carolina state law, a viable fetus has "reached that period of prenatal maturity where it is capable of independent life apart from it mother," normally after 27 weeks of gestation. Maternal liability, as it relates to this debate, refers to a pregnant woman's accountability under the law for the welfare of her unborn child.