Dec. 21, 2009— -- A high-ranking Army official's new policy making pregnancy among troops in Iraq an offense punishable by court-martial is raising eyebrows, even though experts say he is well within his rights to do so.
According to the Nov. 4 general order of Maj. Gen. Anthony Cucolo III, a commander in northern Iraq, the punishment would apply not only to the female soldiers who become pregnant, but also to the male soldiers who impregnate them, even if the couple is married.
Cucolo told ABC News that the policy, believed to be the first of its kind, was necessary to avoid losing valuable troops in his 22,000-member command.
"I need every soldier I've got, especially since we are facing a drawdown of forces during our mission. Anyone who leaves this fight earlier than the expected 12-monthdeployment creates a burden on their teammates," he said in a statement.
"Anyone who leaves this fight early because they made a personal choice that changed their medical status -- or contributes to doing that to another -- is not in keeping with a key element of our ethos, 'I will always place the mission first,' or three of our seven core values: loyalty, duty and selfless service," he continued. "And I believe there should be negative consequences for making that personal choice. "
The pregnancy policy is just one provision in a larger general order that also prohibits soldiers from sexual contact with Iraqis or third-party nationals who are not members of coalition forces.
Provisions in the Nov. 4 order are also applicable to civilians under Cucolo's command.
"I do not expect those who have never served in the military to completely understand what I have tried to explain above," Cucolo wrote. "Recently I was asked, 'Don't you think you are treading on an intensely personal topic?' As intensely personal as this topic might be, leaving those who depend on you shorthanded in a combat zone gets to be personal for those left, too."
Army spokesman Lt. Col. Nathan Banks told ABCNews.com today that Cucolo, like any other commander, has the right to institute and enforce policies as he sees fit.
"Under his command, that's his take," Banks said.
That means, Banks said, that troops in different parts of Iraq and Afghanistan are subject to varying regulations. Some commanders, he noted, have made DUI a court martial-worth offense, while some haven't.
Civilian military lawyer Wayne Kastl, lead counsel with the Military Defender law firm, said this type of policy proves this isn't your grandfather's Army.
He pointed to stories about drinking, sex and other debauchery that permeated Army life during previous wars.
"I think the policy is to put the fear of God into folks over there," he told ABCNews.com. "I don't like it, but I would say that order over there is probably legal."
"I think the troops over there are fighting hard and getting PTSD and all sorts of horrible stuff," Kastl said. If they need a "little comfort helping through the night," he added, so be it.
John Hutson, a former longtime military judge advocate and currently the president and dean of Franklin Pierce Law School in New Hampshire, said it's well within Cucolo's rights to hand down such an order, especially if pregnancy has become a serious issue within his ranks.
When a woman becomes pregnant, "you've taken somebody and you've made her less effective," he said. "And I think its only fair that if you do that with the woman then the man be held equally culpable."
But if the measure is largely preventative and not in response to a growing trend, Huston said, "then it's probably ill-advised."
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"It's not saying you can't have sex," Hutson said. "You have to take precautions."
Still, he added, "in some respects, it flies in the face of family values."
National Organization for Women president Terry O'Neill said the policy infringes on women's rights.
"How dare any government say we're going to impose any kind of punishment on women for getting pregnant," O'Neill said. "This is not the 1800s."
She said NOW would seek to have Cucolo's order rescinded, and would turn to Defense Secretary Robert Gates and even President Obama for help.
"We're going to contact the White House and see if we can contact the Department of Defense and find out if anything can be done to reverse this ridiculous order," O'Neill said.
Kastl said he understands the Army may have its reasons for such an order. Sex among its ranks can cause trouble in many regards, including favoritism of the partner.
Also, soldiers found to be pregnant are sent back to the U.S. in short order and Kastl said he has heard anecdotal evidence of female soldiers intentionally getting pregnant to be sent home.
Because of that, he said, "I can see why they're doing it."
Hutson agreed, saying pregnancies planned to relieve the female soldier of duty is a form of malingering, an Army term for a soldier who injures him- or herself to prevent dangerous assignments.
Kastl noted that the Army already encourages its female soldiers to take medication to stop their menstrual cycle. And in some cases, Cucolo's order may be redundant, since the Army already prohibits fraternization between superiors and subordinates, though it seemingly has no current take on sexual contact between members of the same rank.
Cucolo himself said in the statement to ABC News that his order "made an existing policy stricter."
But Hutson worried that Cucolo's policy could cause an increase in abortions overseas. And since military hospitals do not perform such procedures, female officers may find abortions are available not "in the way you want them," Hutson said, forcing women to potentially dangerous providers of such services.
O'Neill echoed those concerns.
"Where are they going to go?" she said. "Where in Iraq are they going to terminate a pregnancy?"
Kastl theorized that the punishment handed down to those who violate Cucolo's order would likely be handled as a violation of Article 91, or violation of a general order, which is punishable by up to one or two years in prison.
But he said it's unlikely the Army would actually keep an expectant mother or father behind bars for that length of time.
ABC News' Aadel Rashid contributed to this story.