The controversial solution to stopping women from drinking while pregnant.

Andrew is eight-years old. He attends a special needs school. He has poor impulse control, a low attention span and an inability to communicate. He’s disruptive in class and finds it hard to make friends.

He is impatient and violent and frequently gets in trouble and puts himself in danger.

Andrew was always a slow developer and did not walk until he was three.

By the time he is 25, it is believed Andrew will have been in and out of prison many times.

But here’s the thing.

Andrew’s special needs were 100 per cent avoidable. Andrew has Foetal Alcohol Syndrome, and he has only one person to blame – his mother.

In the justice system throughout Australia there are literally thousands and thousands of “Andrews.”

One in five women drink while they are pregnant.

And it is these women who might one day find themselves jailed for their selfishness.

A proposal by the Northern Territory Government to jail women who drink during pregnancy is gaining momentum.

The NT Attorney General is currently exploring the antenatal rights of the unborn child.

Attorney-General John Elferink told the ABC’s Lateline last week they were looking to “either prosecute or alternatively restrain [women] from engaging in conduct which harms their unborn child”.

“But that is something we have yet to explore in this jurisdiction forcibly.”

It is estimated up to 3000 babies are born a year suffering from Foetal Alcohol Spectrum Disorder. It is referred to as an ‘invisible disability’ as it often goes undetected.

In some cases symptoms are attributed to another known non-genetic condition – autism or ADHD – or even simply blamed on ‘poor parenting’.

Obviously something needs to be done. And someone needs to stand up for the rights of these unborn babies.

But who’s responsibility should it be? Is it up to the government to step in?

Your first gut reaction to this, is probably ‘yes’. If these women aren’t going to prioritise the needs of an unborn child then the government needs to.

But it isn’t that simple, is it?

In researching this article I had a discussion with a good friend – a lawyer and former Federal Government political advisor.

Her most salient point drove home just how knee jerk my initial reaction was.

It’s a social issue, she explained, not a criminal one.

She asked me to think about these women – what about their families, what if the women have other children? “It’s bloody tragic, but who is going to care for them?” she asked.

It seems her view is shared by many experts in the field.

The Foundation for Alcohol Research and Education Director Caterina Giorgi told the ABC locking up these women for drinking isn’t the right approach.

“If our aim is to prevent these conditions in the future, if our aim is to minimise the harms that could result from these conditions, then our primary focus should be on supporting both the woman and her child through appropriate treatment options.”

One area that needs to step up to solve the problem is the child protection system.

John Boffa from the People’s Alcohol Action Coalition in Alice Springs told the ABC he does not want to see drinking among pregnant women criminalised but he does want the unborn child to be included in the NT’s Child Protection Act.

“At present the child protection act in the Northern Territory only kicks in once a baby is born and we can’t make referrals in-utero,” he said.

And here the issue thickens, with the rights of the unborn child a key factor in abortion law. It would be murky waters to wade into giving unborn babies total legal rights.

The issue isn’t one just limited to the Northern Territory.

The Australian reported about the increasing problem the West Australian justice system was having with men and women brain damaged by Fetal Alcohol Syndrome. It was described by Chief Justice Wayne Martin as WA’s biggest issue facing the justice system.

And the problem is only increasing.

Obviously the unspoken elephant in the room is the fact this is overwhelmingly an Indigenous Australian issue.

Aboriginal leaders say traditional cultural laws should be used to discipline women who drink while pregnant.

“We need more of the disciplining to be done our way,” chair of the Uniting Aboriginal and Islander Christian Congress, Reverend Rronang Garrawurra told the ABC.

It’s a complex and far reaching problem – and the solution is probably less punitive and more social. Less discipline and more education is needed.

More awareness more grass roots community programs to combat alcohol abuse and domestic violence.

And money. Surely that’s desperately needed as well. We will watch and see how these proposed laws pan out – and be sure to keep you updated.

What do you think? Should women who drink while pregnant be jailed?