Maternal Drug Use During Pregnancy Ruled Not Child Abuse in Pennsylvania

The Pennsylvania Supreme Court, in the case of In the Interest of L.J.B., ruled that mothers who used illegal drugs during pregnancy cannot be charged with child abuse offenses. The case arose from a pregnant mother who took unprescribed sublingual buprenorphine, a treatment for her opioid addiction, following relapse from a methadone maintenance program. She tested positive for marijuana and buprenorphine after delivery. The newborn suffered from neonatal abstinence syndrome (NAS) starting by the third day, exhibiting tremors, excessive suck, increased muscle tone and loose stools. The mother was discharged from the hospital, but the newborn remained.  The hospital, therefore, made a room available for the mother to stay. However, she did not stay and contact with her child was inconsistent. The local child welfare agency was granted emergency protective custody of the newborn in juvenile court. It also filed a petition in court alleging the child “without proper parental care or control … as required by law” and was a victim of child abuse by a perpetrator (parent of a child) who caus[ed] bodily injury to a child through any recent act or failure to act” under Pennsylvania law. The infant was hospitalized for 19 days during which she “suffer[ed] from withdrawal due to substances Mother ingested while Mother was pregnant with her.”

The mother argued against the charge, asserting that Pennsylvania law for child abuse does not cover a fetus or unborn child. The juvenile court agreed with the mother but the child welfare agency appealed to Superior Court.  Superior Court reversed the decision and found that “Mother’s illegal drug use while pregnant may constitute child abuse if the drug use caused bodily injury to Child.” Although agreeing with the mother that a fetus or unborn child is not included in the definition of “child” in the CPSL, it found that “Mother’s drug use is a ‘recent act or failure to act’,” and that her conduct caused or was reasonably likely to cause injury to Child who, now born, constituted a “child.” It therefore held “that a mother’s use of illegal drugs while pregnant may constitute child abuse under if established that, by using the illegal drugs, the mother intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of, bodily injury to a child after birth.” One Superior Court judge, although agreeing with the decision, raised the question whether pregnant woman with addiction problems would avoid prenatal care for fear of being charged with child abuse. The decision could also extend to other decisions that pregnant women make such as drinking coffee or eating sushi. An appeal to the state Supreme Court followed.

The state Supreme Court ruled that since the definition of “child” in the statute did not include a fetus, a pregnant woman cannot fit the definition of a “perpetrator” meaning parent of a child under the law because she is not the “parent of a child”. The fact that the mother became a parent upon delivery did not alter this fact. The ruling was considered a “great victory for public health, women’s rights and children’s rights.” In keeping with the comment of the superior court judge, treatment for addiction during pregnancy likely makes for good medical policy, rather than prosecution. This may be especially relevant in the context of the current opioid epidemic, which is also a statewide emergency in Pennsylvania. 

References

Drug Use While Pregnant Does Not Constitute Child Abuse, Pa. Supreme Court Rules.

Screening Pregnant Women and Their Neonates for Illicit Drug Use: Consideration of the Integrated Technical, Medical, Ethical, Legal, and Social Issues.

Breastfeeding support and opiate dependence: A think aloud study.

Substance Use During Pregnancy.