The notion of issuing a care order to protect the unborn child may well stem from a genuine wish to care for children, but its implic-ations have clearly not been accorded sufficient attention.

There are two aspects to this proposal.

1. The current situation of care orders

Care orders are at present issued in dire situations mainly because of the lack of placements available. This means a number of children who require care and protection remain in undesirable and/or inappropriate placements. A case of child abuse decided by the Criminal Courts in 2009 identified a child under a care order living with the mother she was being protected from. Furthermore, the legality of care order proceedings is itself under review and an appeal case is currently sub judice before the Constitutional Court.

The proposal is for unborn children to be placed under a care order in order "to treat the unborn child like other children". The chairman of the Social Affairs Committee suggests that "The mother would be put under observation to protect the child. She could be put into an institution or housed with another family". Will she be subject to 24/7 surveillance to ensure she does not drink or smoke or spend time with individuals whether at home or at work who smoke cigarettes and who may be potentially violent? Will she be kept in an environment free from pollutants and contaminants which may harm the unborn child? Once the child is born, will the care order continue to be enforced?

2. The implied clash of rights

The right of the child to life requires an affirmative action to promote healthy conception, pregnancy and a safe delivery. It does not give the state the pretext to treat the mother's rights as inferior and curtail fundamental rights to liberty. Policing pregnancy is not the answer. Neither is developing a clash between the rights of the foetus and the rights of women to self-determination and autonomy of their own bodies.

Offering care and support to expectant mothers (and fathers) who need it is a much better response. My good friend Dr Anna Maria Vella from Sedqa has long advocated the issue of a treatment order for substance-abusing women, but this as a last resort. In my opinion it should be used only where it is proven that the pregnant woman is not competent to make her own decisions. However, these competency tests should be on the same lines as those applied to all other adults whose competence is in question.

What comes next? Should the legal right of a foetus to begin life with a sound mind and body be assertable against the mother? A legal duty to guarantee the mental and physical health of a child in the womb has never before been recognised in law. If so, any action which negatively impacts on foetal development would be a breach of the pregnant woman's duty to her developing foetus. "Mother and child would be legal adversaries from the moment of conception until birth." A mother who refused a birth plan suggested by a physician could be deemed to be causing harm to the child (as in the enforced caesarian cases). Where does this end?

This issue was raised in the context of the rights of the unborn child of the drug-abusing mother. The duty of care by a pregnant substance-abusing mother who is made aware of the harm being caused to her unborn child should be enforced by treating the mother and providing necessary support. Meanwhile it might be advisable to pay more attention to the existing care order system before extending its remit.