should a drug-abusing expectant mother be charged with child abuse?

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Request for Question Clarification by justaskscott-ga on 08 Jun 2003 19:54 PDT

I don't think that the answer to this question is the automatic,
clear-cut "yes" offered by the three commenters so far.  I suppose
everyone would agree that drugs such as cocaine or heroin would likely
do harm to both the pregnant woman and the fetus she carries. 
However, is prosecution for child abuse the proper way to prevent
pregnant women from abusing drugs, or to deal with those who do?

I don't have time at the moment to write an answer to this question. 
I would be happy to submit an answer if no one else does so first.  I
would also be happy to do some research to find supporting citations,
if you wish to raise the price in accordance with the Google Answers
pricing guidelines.  (If you do raise the price, please post a
clarification here so that the Researchers are alerted to that fact.)

https://answers.google.com/answers/pricing.html

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Request for Question Clarification by tutuzdad-ga on 08 Jun 2003 20:31 PDT

If you can tell us where (what jurisdiction - city, county , state,
country, etc) the incident is/was taking place in, I would be happy to
approach your question from a legal standpoint rather than a moral one
(if that is what you are interested in). However, as justaskscott-ga
suggested, the price you have selected normally doesn't cover the
amount of research that would be required for such a complicated
question.

Regards;
tutuzdad-ga

Since your question has been around for over a week now, I figured it
could use an answer.

The commenters have indicated a variety of ways in which this question
can be approached.  First of all, some would answer "yes" to the
question.  The argument for a "yes" answer might go like this:  If
something is harmful, it should be illegal.  If someone harms a child,
it should be prosecuted as child abuse.  If a pregnant mother harms
her unborn child, that is child abuse for which she should be
prosecuted.

One could look at the question in ways that might alter the "yes"
answer.  First of all, one might treat abuse of illegal drugs such as
cocaine or heroin differently from legal drugs such as nicotine or
alcohol.  Personally, I tend to think that there is relatively little
difference in how the law should treat legal versus illegal drugs in
this situation.  The issue is not whether the person is allowed to
take those drugs, but whether taking the drugs should be prosecuted as
child abuse.  If there is a difference, I think it would be in how
well-known the dangers of one substance versus another are.

Another way to look at the question is suggested by angy-ga's comment.
 Should a prosecution begin if a woman takes drugs at any time after
she learns she is pregnant?  Or should it only occur later in the
pregnancy?  Or perhaps it should occur once the pregnancy has ended? 
These questions lead to other questions.  Did the woman plan to become
pregnant, so that she could have also planned to phase off of the
substance she was taking?  When does the embryo or fetus become a
child, for which the child abuse laws should apply?  Is the purpose of
prosecution to put a woman in custody so that she has no access to
drugs, or just to punish a woman for having taken those drugs?

That last point leads to additional considerations.  If the purpose to
prosecution is to prevent drug-taking, and thereby to help the mother
and fetus, will the purpose be served?  One the one hand, some women
will be put in a situation where they cannot take drugs and can
receive help.  On the other hand, some women might be put in jail or
prison, where they might not (or might) have access to drugs, but
which in any event might be harmful to the mother and the fetus.

Perhaps the positives will outweigh the negatives for most of the
women prosecuted for child abuse in this situation.  But what about
other pregnant women?  Many of them will be scared -- even more scared
than they would otherwise be -- to admit to anyone that they are
taking drugs, and will be dissuaded from seeking help for their
problem.

In the end, as other commenters have pointed out, some communities
will choose to enact criminal laws and prosecute pregnant women for
taking drugs that endanger the fetus, while others will encourage
different strategies, such as advertising the dangers and offering
treatment.  (Of course, those that prosecute can also use the
alternative strategies to some degree, and vice versa.)

My view is that the government should not be arresting and threatening
pregnant women for doing something that is difficult to stop doing,
and rather should encourage them as much as possible to seek help. 
This view accords with my general political viewpoint; but if I had a
different viewpoint, I might say that the government needs to act more
forcefully to prevent immediate harm.  There can also be a middle
view, which allows the option of prosecution (or even the option of a
felony or misdemeanor charge) in some cases, and treatment in others,
perhaps depending on how much the woman makes a sincere effort to stop
taking drugs.

Each of these positions has merit -- which you choose is up to you.

YES

another vote for yes

Absolutely.

tlspiegel

Are you speaking strictly of illegal drugs? Or also the abuse of
nicotine (associated with low birth weight), or alcohol (which can
lead to fetal alcohol syndrome (FAS) and other neurodevelopmental
disorders)?

The Center for Disease Control describes FAS on its website:
http://www.cdc.gov/ncbddd/fas/default.htm

I was thinking of all drugs including nicotine and alcohol.  In Ohio,
notices of the dangers of drinking and pregnancy along with smoking
and pregnancy are posted in most establishments.  It is not a matter
of violating the law through ignorance, it is a deliberate ignoring of
warnings to smoke or drink during pregnancy.

Even if there is drug intervention, in the case of harder drugs, while
the expectant mother may be treated, the crime has already been
committed and whatever damage there may be is already done.

While I agree with justaskscott-ga that there are treatment and other
options available, some degree of prosecution for child abuse should
be part of the process.

Of course this is no more than personal opinion.

digs

There is an assumption in the comments here that the pregnancy is
deliberately chosen. Also, at what point does the prosecution come
into play ? After the child is born damaged seems a bit late; but
prosecuting a cigarette smoker whose baby seems to be progressing
within normal parameters seems a bit severe.

I must presume the law is not the same everywhere.  The reason I
worded my comment to say "some degree" is that not all such
prosecutions are felonies.  The wife of a friend was arrested for
smoking while pregnant.  It was a misdemeanor charge, the fine was
about the same as for a speeding ticket along with court ordered
counseling.  She has no conviction of a felony on her record.

What this does is allow the court to order counseling.  Without a
conviction, all authority can do is recommend, and the subject may or
may not have the counseling.  This way, they know the counseling will
take place.

I perhaps should apologize for not putting the words "some degree" in
quotes to make them stand out.

If such prosecutions were always felonious in nature and life
destroying, then we would be in full agreement.

digs

Not to make light of the situation as it is quite a serious subject,
but I think the real underlying answer to this question depends on a
question best asked on Seinfeld: Is it a pizza when it comes out of
the oven, or is it a pizza the minute you "putta your hands ina the
dough?"
In all seriousness, many people have different answers to this
question, and this would obviously impact the legal issues concerning
this issue.

Perhaps it is because I do not live in the United States, but I cannot
go along with the idea that every problem in the world can be solved
by arresting, fining or sueing someone.

It will only be the less educated, ignorant women, who do not realise
that lighting up/drinking etc in public will result in undesirable
consequences under the fascistic regimen that appears to operate over
there.  Meanwhile, the glossy celebrity pregnant junkie will light up,
snort, or inject herself with whatever she pleases, and no one will
know any better.

The key to ensuring the prenatal and postnatal health of children lies
in education, medical and emotional support and financial incentives,
as needed, not in punishment.

http://www.agi-usa.org/pubs/spib_SADP.pdf