A child born with foetal alcohol syndrome is not legally entitled to compensation after her mother drank excessively while pregnant, the Court of Appeal has ruled.
The seven-year-old girl was born with severe brain damage and is now in care.
Lawyers argued her mother had poisoned her foetus but appeal judges ruled she had not committed a criminal offence.
The case was brought by a council in the North West of England, which cannot be named for legal reasons.
End Quote Neil Sugarman SolicitorIt's not about women's rights, it's not about criminalising women"
It had been argued the woman ignored warnings and drank a "grossly excessive" amount of alcohol while pregnant.
She consumed eight cans of strong lager and half a bottle of vodka a day, the court heard.
Three appeal judges at the Court of Appeal had to rule on whether or not the girl was entitled to a payout from the government-funded Criminal Injuries Compensation Scheme as a victim of crime.
But Lord Justice Treacy said an "essential ingredient" for a crime to be committed "is the infliction of grievous bodily harm on a person - grievous bodily harm on a foetus will not suffice".
'Hugely important' caseThe girl, who cannot be named and was referred to in court as CP, suffers with learning, development, memory and behavioural problems.
BBC News legal correspondent Clive Coleman said the case was significant because it centred on whether or not a foetus was considered a person, independent of its mother.
He said: "This case was hugely important, because campaigners argued that if the Court of Appeal had said it was possible for a mother to commit a crime by poisoning her foetus with excessive alcohol, it would have had the effect of criminalising pregnant women who drank excessively, knowing the dangers of alcohol to their foetus."
Foetal alcohol syndrome
Heavy drinking during pregnancy can lead to foetal alcohol syndrome (FAS).
Alcohol passes across the placenta from the mother to the developing foetus.
But the foetus cannot process alcohol effectively until the liver is fully developed and the high levels of alcohol can affect the development of organs and the brain.
Children with FAS are born with a range of disabilities, are often shorter than average and some have learning and behavioural difficulties.
People with the syndrome can have differences in their facial features such as a flat nose bridge, a small head and a thin upper lip.
It is thought that foetuses are most at risk during the first three months of pregnancy when organs are forming - but damage can occur at any time.
John Foy QC, representing the council that has responsibility for CP, told the court her mother drank the equivalent of 40-57 units of alcohol a day.
National Institute for Health and Care (Nice) guidelines suggest 7.5 units daily might damage a foetus.
Mr Foy said the young mother, for whom it was a second pregnancy, was aware of the dangers, adding: "She was reckless as to whether there would be harm to the foetus.
"She foresaw that harm might be caused but went on to take the risk."
Ben Collins, appearing for the Criminal Injuries Compensation Authority (CICA) had asked the court to reject the legal challenge, telling the judges: "There is a conflict of ideas about what is or is not dangerous, not only in terms of drink but also in terms of smoking and food."
He asked whether "a pregnant mother who eats unpasteurised cheese or a soft boiled egg knowing there is a risk that it could give rise to a risk of harm to the foetus" could be accused of a crime.
The British Pregnancy Advisory Service (Bpas) and the childbirth charity Birthrights welcomed the ruling.
Rebecca Schiller, co-chair of Birthrights, and Bpas chief executive Ann Furedi said it was "an extremely important ruling for women everywhere".
"The UK's highest courts have recognised that women must be able to make their own decisions about their pregnancies," they said.
"Both the immediate and broader implications of the case were troubling. In seeking to establish that the damage caused to a foetus through heavy drinking was a criminal offence, the case called into question women's legal status while pregnant, and right to make their own decisions."
'Wake-up call'Neil Sugarman, the solicitor acting for CP, said the decision was "clearly disappointing" and that the case was not about women's rights or "criminalising women".
He said GLP Solicitors, of which he is managing partner, represents about 80 other children with FAS and that they would now be looking at the implications of the ruling.
The only legal option left is to seek to take the case to the Supreme Court.
Julia Brown, chief executive of the Foetal Alcohol Spectrum Disorders (FASD) Trust, told the BBC the case highlighted the need for pregnant women to be given advice about drinking, and support to stop drinking if necessary.
"There are no winners in a case like this," she added, saying she hoped it would be a "wake-up call" to make people think about the dangers of drinking when pregnant.
The NHS recommends that pregnant women should not drink at all - adding that those who choose to have a drink should have no more than two units of alcohol once or twice a week.
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