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Estonia: Smoking or Taking Drugs During Pregnancy May Be Criminalized

(Sept. 20, 2013) Following the example of neighboring Latvia, where damaging children’s health through second-hand smoking was criminalized recently ( see Peter Roudik, Latvia: Smoking Parents Will Be Prosecuted, GLOBAL LEGAL MONITOR (June 5, 2013)), the Estonian Ministry of Justice proposed a bill amending the Penal Code of Estonia to make it illegal for pregnant women to engage in behaviors damaging to the fetus, including smoking. (Smoking While Pregnant Could Become Legally Sanctionable, ERR NEWS (Aug. 28, 2013).)

Taking drugs, including strong medications, or smoking will be grounds to prosecute a woman for actions damaging a fetus, if the new bill is passed by the Estonian Parliament. (Greater Dangers to Pregnancy than Smoking, Says Minister, ERR NEWS (Aug. 29, 2013).) Under the proposed legislation, these actions will be punishable by imprisonment for a term of up to five years or by a fine of up to an amount equal to approximately US$2,140. (Smoking While Pregnant Could Become Legally Sanctionable, supra.)

Estonian Minister of Justice Hanno Pevkur explained that the legislation is aimed at promoting health awareness among future mothers. According to Pevkur, carelessness and ignorance are exemptions from criminal responsibility, and smoking a few cigarettes will not necessarily result in criminal prosecution. (Greater Dangers to Pregnancy Than Smoking, Says Minister, supra.) Mothers’ actions will be punishable only if they result in a disability that surfaces at birth and if the mother knew that she was damaging the fetus by her behavior. (Id.)

At present, the Estonian Penal Code provides that a person can be liable for damaging an embryo or a fetus only if the act resulted in a miscarriage or the death of the embryo or fetus. (Penal Code of the Republic of Estonia (consolidated July 15, 2013), art. 129 [enter “Penal Code” in the search box and then select the version desired].)

Prepared by Svitlana Vodyanyk, Law Library Intern, under the supervision of Peter Roudik, Director of Legal Research