Can the law protect fetus from a drug-abusing mother?

Note: This article originally ran on June 4, 1989 as part of the AJC’s award-winning “Suffer the Children” series.

Last month, a Rockford, Ill., woman was charged with involuntary manslaughter after her infant daughter died as a result of the woman's cocaine addiction during pregnancy. Prosecutors called it the first case of its kind in Illinois.

In Florida, a woman was charged last December with child abuse after her baby was born addicted to cocaine. According to officials, it was the state's first such felony case. A Washington, D.C., judge sentenced a 30- year-old woman to jail last September for the duration of her pregnancy. She had been convicted of forging checks, an offense usually punished with probation. But the judge said he wanted to protect the fetus.

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"She's apparently an addictive personality, and I'll be damned if I'm going t o have a baby born that way," said Superior Court Judge Peter H. Wolf, according to trial transcripts.

In courtrooms across the country, as the phenomenon of drug-abusing pregnant women grows, prosecutors are holding these women to a higher standard of maternal care than ever before. But some legal scholars see a collision ahead.

Already in child abuse cases, judges must grapple with conflicts that pit the rights of parents against the rights of their children. As judges seek to protect the unborn, they are sailing into uncharted seas, where the rights of a fetus can run smack up against the woman's right, at least during much of her pregnancy, to abort the fetus.

"The controversy is the same you see in abortion cases," said Dr. Deborah A. Daro, director of research for the National Committee for Prevention of Child Abuse. "It's a matter of when life begins."

Whether the definition of child abuse should extend to an unborn fetus is as tricky and unresolved as the issue of abortion. Experts pose this question: What if the woman jailed while pregnant had decided to have an abortion as a means for getting out of jail? Does the law permit her, in effect, to kill her fetus yet prohibit her from abusing it?

"That's a really complicated and difficult issue," says Patricia A. Toth, director of the National Center for the Prosecution of Child Abuse. "I can see some differentiation between the mother who has chosen to carry the child to term and intends to have the child born. Just as a matter of moral obligation, it seems to me, there is some duty there to not needlessly endanger the child. Whether or not that means there should be criminal penalties for failure to do that is complicated."

Abortion opponents say the issue offers ample support for their argument that a fetus is a live human being. Even child welfare experts acknowledge that once the courts get into the business of protecting fetuses, they may have difficulty defending abortion.

"If you recognize their rights as a fetus for the purpose of protecting them under child protection laws, then you are in fact recognizing their right to life," said Dr. Daro.

Besides the legal dilemma that a woman's right to abortion poses, there's a real question of how far government should go in protecting a fetus from the harmful behavior of its mother. According to a recent Gallup Poll, 48 percent of the American public believes that pregnant women who smoke or drink should be held liable for harm to the fetus.

"I think that prenatal substance abuse is perhaps a reportable condition, but it's unclear what the remedy is," said Robert M. Horowitz, associate director of the American Bar Association's National Legal Resource Center for Child Advocacy and Protection. "If she doesn't stop, what do you do? Do you go to court? Do you lock her up? Where do you draw the line? Cocaine is bad, but so is drinking three glasses of wine, or not getting enough rest or abusing your body with the wrong foods."

A growing number of states have passed laws that require hospitals to automatically report any baby born with traces of illegal drugs in its system to the child protective services agency.

"Obviously if you have a drug-abusing mom and it's had those kinds of consequences on the child physically, I would assume it's common sense there would be some reason to question the mother's ability to care for the child," said Ms. Toth.

But the question of what happens to a child after birth is legally easier to deal with than what happens before, says Mr. Horowitz. If the state intervenes earlier, "that's a can of worms," he says. "It raises the constitutional issue of privacy of a woman's body, as well as a very practical question of what do you do."