Sins of the Mother: Socio-legal Imaginaries of Epigenetics

• ‘Epigenetics and Transgenerational Responsibility’, MRC DiMeN Doctoral Training Partnership, Online Seminar, Newcastle University, 6 June 2019
• ‘Epigenetics and Transgenerational Justice’, Centre for Health, Law and Emerging Technologies (HeLEX), The University of Oxford, 17 June 2019

• Epigenetics and the Sociotechnical Imaginaries of Transgenerational Justice, Society for Social Studies of Science (4S) Annual Conference, New Orleans, Louisiana, USA, 7 September 2019

Epigenetics is one of the most cutting-edge discoveries in science explaining the ways in which environmental, medical, nutritional, and behavioural experiences (even the experiences of the past generations) influence gene expression, and how these changes are transmitted to subsequent generations. Pregnant woman’s body, ‘the maternal body’, is the focus of transgenerational epigenetics which studies the inheritance of epigenetic phenomena between generations. Because epigenetics explains how nature and nurture interact in determining human traits, there is a growing awareness of the findings in this field from both health and policy perspectives.

 Transgenerational epigenetics is suggesting a link between maternal behaviour and lifestyle during pregnancy and after birth, and the subsequent well-being of their children in both early and adult life. For example, poor prenatal diet, prenatal exposure to domestic violence, exposure to maternal distress, Caesarean delivery, alcohol intake before conception and during pregnancy are all linked to epigenetic changes, which may cause health problems in the offspring. In this field, the uterus is seen as a micro-environment in which new generations can take shape for better and worse. Hence, the scientists, especially those who work in the developmental origins of health and disease (DOHAD), seek to find out how to control the maternal environment and behavior to advance the health of the offspring and next generations.

 Currently, the focus in this area is overwhelmingly on research linking epigenetic events during pregnancy (Richardson 2015, Valdez 2018,) and the ways in which the experiences and behaviors of women (mothers, grandmothers, and great-grand-mothers) ‘sculpt’ and ‘program’ the next generations (McGowan and Szyf, 2010: 66). The scientific findings in epigenetics are already influencing policy and practice in important ways. This is particularly the case with prescriptions about how individuals should experience pregnancy and optimize reproductive health even before conception.

 Because epigenetics concerns how gene expression is influenced by the social realm, including a range of environmental conditions such as stress, diet, smoking, exercise, exposure to chemicals, pollution, and environmental hazards, the research findings in this area have direct policy relevance. For policy makers, rather than controlling this complex range of determinants of health, isolating and targeting maternal body and responsibilizing mothers for the control of this micro-environment might seem feasible. But, there is a risk that this would create more responsibilities for women than opportunities.

 Claims associated with epigenetics are influencing public notions of maternal responsibility towards future generations and raise novel challenges for law, particularly for transgenerational justice. In the legal process, of course, the social understanding of the normative values around parentage holds a big value. As Karpin argues: ‘Rather than tackling social inequality, women may be constituted as hostile or as potentially hostile “environments” for future people’ (Karpin 2018). Since 1980s some children who suffered prenatal injuries have sued their mothers for alleged negligence during pregnancy and, ‘an alarming number of pregnant women have been criminally prosecuted for allegedly risking or causing harm to the foetus, based on conduct such as choosing not to deliver by caesarean section, having accidents, or attempting suicide’ (Fentiman 2017, 72). It is therefore worth asking whether epigenetic responsibility may provide a new source of litigation and liability under the common law and epigenetic evidence may be used to support legal claims. An article published in Business Insider by Robert Ferris suggested ‘One day, we might sue our grandparents for their bad habits’. As articulated by Kat Arney, in The Guardian ‘What of some overzealous law-maker reads the headlines about how a female rat’s behaviour to diet can epigenetically modify her foetus, and starts drafting a bill dictating what pregnant women can and can’t do or eat?’ This is not far-fetched question. In fact, legal thinkers already started speculating the ways in which claims associated with epigenetics can be used in the court. Robison notes if ‘connections between present actions and future consequences can be established scientifically via epigenetics, a tidal wave of legal claims would potentially arise of children against parents, grandchildren against grandparents, and so on, introducing unprecedented and far-reaching legal and political complications into the mix'.

 Epigenetics has been indirectly tested in tort law in the case of diethylstilbestrol (DES) in the US courts. In the US, mothers and daughters who were exposed to DES during pregnancy sued manufacturers for causing infertility and cancer in second and third generations. Although mothers (directly) and daughters (inutero) exposed to DES were successful in their claims due to victim attenuation, third-generational claims made by granddaughters were not successful, ‘due primarily to the courts’ unwillingness as a matter of tort theory…to extend liability’ (Rothstein et al 2009).  The courts ruled that the granddaughters were too far attenuated from the initial offence (Rothstein et al 2009).

 Another example of epigenetics being indirectly tested can be seen in the UK where there has been claim made by a local authority on behalf of the child from the Criminal Injuries Compensation Authority. The case maintained that the mother’s heavy drinking during pregnancy constituted the crime of poisoning under section 23 of the Offences Against the Person Act 1861.  The application was dismissed: three judges agreed for the purposes of the law the unborn baby was a ‘unique organism’ but not a person, hence there had been no crime of violence. Lord Justice Dyson, said: ‘Parliament could have legislated to criminalise the excessive drinking of a pregnant woman but it has not done so … Since the relationship between a pregnant woman and her foetus is an area in which parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.’ [2014] EWCA Civ 1554. As epigenetic changes can contribute to the abnormalities associated with Fatal Alcohol Spectrum Disorders (FASD) and epigenetic biomarkers show promise for early screening of at-risk individuals (the syndrome is not always visible), could this discovery from the epigenetics studies be tendered as evidence in the court to support the claim brought on behalf of affected children against their mothers (or in response to Lord Justice Dyson’s observation, could the Parliament someday utilise this findings to support a bill to criminalise excessive drinking of a pregnant woman)?

 In Blaming Mothers, Professor Linda Fentiman explores how mothers became legal targets. Linda Fentiman argues that since 1980, six state appellate courts in the US considered whether mothers should be found liable either in tort or in criminal law based on their behaviour or their circumstances during their pregnancy because of potential risks to the fetus. While three state courts found that women do have a legal duty to avoid harm to their fetuses, three state courts ‘declined to find that pregnant women had a legal, as opposed to a moral, duty to behave in a risk-reducing manner’ (p.47). Fentiman notes that in Stallman v. Younquist, the Illinois Supreme Court declared that the relationship between a pregnant woman and her developing fetus was ‘unlike the relationship between any plaintiff and defendant’. A pregnant woman’s ‘every waking and sleeping moment…shapes the prenatal environment’, and that it would be difficult to define or limit the scope of the duty of pregnant woman toward her fetus, because there are so many conditions, including events prior to conception could affect fetal development. Fentiman notes that it would be impossible to apply objective standards to women of diverse socio-economic backgrounds. This shows that courts are unlikely to see epigenetic markers as acceptable for liability. The interviews I conducted with legal thinkers and bioethicists also confirms this: many scientific findings in epigenetics are too preliminary to provide a solid evidence.

Throughout history, in the name of disease prevention for their offspring, women’s bodies were constructed and treated as responsible, intervenable and controllable environments. Yet, as evidenced by the Covid-19 pandemic’s disproportionate effects on people with low socioeconomic or poor health status, individuals, including pregnant women have little control over their environment and lifestyle. During the pandemic, women bore considerable physical and psychological stress which combined with other stress factors such as domestic violence. Examining maternal body in isolation as a powerful environment to shape the health of next generations not only responsibilises women for the environment that they cannot control but also makes them a target for intrusive and potentially exploitative biomedical and potentially legal interventions. Although plasticity-affirming potential of epigenetics makes it an attractive tool that reflects a popular health discourse which focuses on control and self-improvement, the knowledge of epigenetics at the same time also risks responsibilizing would-be mothers and young mothers for circumstances that they cannot control.

 While the findings from epigenetics research can be a useful insight to improve people’s lives by reducing pollution, improving working and living conditions to reduce stress and tackling with social inequality, they may also bring an undesirable effect of discriminating and stigmatising certain group of people if they are used to making individuals accountable to circumstances that they may not always have the capability to control. As I suggested in this blog, pregnant women are those individuals who may subject to this undue liability.

Acknowledgements: I owe thanks to Ying-Qi Liaw for her suggestions.

Dr Ilke Turkmendag, Senior Lecturer in Law, Innovation and Society

Fentiman, L. (2017) Blaming Mothers: American Law and the Risks to Children’s Health, NYU Press

Karpin, I. (2018)  Vulnerability and the Intergenerational Transmission of Psychosocial Harm, 67 Emory Law Journal 1115

McGowan PO, Szyf M. (2010) The epigenetics of social adversity in early life: implications for mental health outcomes. Neurobiol Dis. 2010 Jul;39(1):66-72. doi: 10.1016/j.nbd.2009.12.026. Epub 2010 Jan 4.

Richardson, S. (2015) ‘Maternal bodies in the postgenomic order: Gender and the explanatory landscape of epigenetics’. In S. Richardson and H. Stevens (Ed.), Postgenomics: Perspectives on Biology after the Genome. Duke University Press.

Rothstein, M A, Cai, Y., & Marchant, G E (2009). The Ghost in our genes: Legal and ethical implications of epigenetics. Health matrix :19(1):1-62

Valdez, N. (2018) ‘The Redistribution of Reproductive Responsibility: On the Epigenetics of “Environment” in Prenatal Interventions’, Medical Anthropology Quarterly, 32(3), pp. 425–442. doi: 10.1111/maq.12424.