Inheriting Your Mother's Eyes, Hair, and Drug Addiction: Protecting The Drug‐Exposed Newborn By Criminalizing Pregnant Drug USE

• Published date: 01 January 2016
• Author: Alexana Gaspari
• Date: 01 January 2016
• DOI: http://doi.org/10.1111/fcre.12207

STUDENT NOTES

INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG

ADDICTION: PROTECTING THE DRUG-EXPOSED NEWBORN BY

CRIMINALIZING PREGNANT DRUG USE

Alexana Gaspari

Despite the absence of statutory criminalization of drug use during pregnancy in the majority of states, states are increasingly

recognizing that drug abuse is a massive economic and social problem. Tennessee is the first state to implement a statute that

specifically addresses the issue of pregnant drug users by criminalizing those whose use harms their child. Because drug abuse

may involve addiction in many cases, the statute provides a defense to those who take reasonable steps to seek help and get

clean before the child is born. This Note examines the criminal aspect and impact of drug use during pregnancy and proposes

that each state adopt the Tennessee statue, while ensuring pregnant mothers access to drug treatment and assessment through

drug courts. Drug use is illegal and drug use during pregnancy should be criminalized as well.

Key Points for the Family Court Community:

The impact of drug abuse during pregnancy causes unhealthy babies, which creates a financial and social burden on

the state.

Drug use during pregnancy is associated with many risks including mortality, low birth weight, and Neonatal Absti-

nence Syndrome.

The goal of incentivizing healthy births can be achieved through a specific statute criminalizing drug use during

pregnancy.

The Tennessee statute provides an affirmative defense for mothers who are actively enrolled in an addiction recovery

program before the child is born and successfully complete the program. While still approaching addiction as a disease,

this methodology will incentivize pregnant drug users to seek help before birthing an unhealthy child.

Keywords: Addiction; Criminalization; Drug Abuse; Drug Rehabilitation; Drug Use; Neonatal Abstinence Syndrome;

Pregnancy; and Pregnant Drug Use.

I. INTRODUCTION

On Sunday, July 6, 2014, Mallory Loyola gave birth to a baby girl.

1

Within hours of being born,

that baby tested positive for methamphetamine (meth).

2

Meth abuse during pregnancy can lead to

increased rates of premature delivery, placental abruption, small size, lethargy, mortality, heart and

brain abnormalities, and neurobehavioral problems throughout life.

3

On July 8, 2014, Mallory Loy-

ola was arrested and charged with simple assault under Tennessee’s 2014 statute criminalizing preg-

nant drug use.

4

She pled guilty to a probation violation and was mandated by the drug court to a

drug rehabilitation program.

5

The court dismissed her case in February 2015 after she completed a

program at Helen Ross McNabb Center and stayed out of trouble for six months.

6

Tennessee is the first state in the United States to criminalize pregnant drug use.

7

Although Mal-

lory Loyola is the first to face criminal charges for her pregnant drug use, she certainly will not be

the last.

8

Based on data averaged across 2012 and 2013 in the United States, 5.4% of pregnant

women aged fifteen to forty-four are current illicit drug users.

9

Research from the University of

Michigan has revealed that one baby is born every hour addicted to opiate drugs in the United

States.

10

Newborns with drug addiction experience longer and more costly hospitalizations than

Correspondence: agaspa8@pride.hofstra.edu

FAMILY COURT REVIEW, Vol. 54 No. 1, January 2016 96–111

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C2016 Association of Family and Conciliation Courts

healthy babies, and the majority of hospital expenditures for this condition are paid for by the state

through Medicaid programs.

11

The increasing incidence of drug addicted babies is a serious social

problem, and Tennessee is engaged in a useful experiment to analyze whether criminalization is a

suitable approach to the problem.

12

In order to reduce antenatal exposure to illegal drugs across the

United States, pregnant drug users who do not seek help before her baby is born must be criminalized

to create a deterrent and mandated rehabilitation.

13

This Note proposes that states carefully monitor the implementation of the Tennessee statute and

consider its implications in their own states. The Tennessee statute implements criminal assault penal-

ties on a woman for the “illegal use of a narcotic drug while pregnant if her child is born addicted or

harmed by the narcotic drug and the addiction or harm is a result of her illegal use of a narcotic drug

taken while pregnant.”

14

The statute specifically addresses only those women who birth a child; there-

fore, pregnant women can still decide to abort the fetus within the limits of Tennessee law.

15

It is the

legislative intent that this law will still allow a woman to have the choice to abort the fetus within the

limits of Tennessee law.

16

Additionally, the statute provides an affirmative defense formothers actively

enrolled in an addiction recovery program before the child is born and who successfully complete the

program.

17

In order to track the impact of the law on mothers and babies in each specific state, the pro-

posal contains a sunset provision in two years to review the statute’s overalleffect.

18

Every state should

adopt the Tennessee statute to ensure a criminal deterrent that also provides access to drug treatment

for pregnant women using drugs. The statute should be comprehensively evaluated, as is currently pro-

vided, after two years of implementation. This will allow individual states choosing to adopt this legis-

lation to modify and amendit in accordance with theirneeds.

Part II of this Note provides a background to the growing number of babies being born addicted

to drugs and its effects on society, the child’s health, the parents, and the state. Part III of this Note

discusses the implementation of the Tennessee statute to combat neonatal abstinence syndrome

(NAS). Part IV of this Note explores the current state of the law and shows that states are conflicting

in their solution to this problem. For example, some states, such as Colorado, consider drug abuse

during pregnancy to be a civil wrong, like abuse or neglect.

19

Others, like Alabama, have upheld

criminal convictions for pregnant substance abuse.

20

Part V of this Note offers a solution to protect

drug addicted babies by proposing that states adopt the Tennessee statute.

21

The national yearly

increase in babies that were born drug addicted calls for a novel experiment, such as the Tennessee

statute, which should be implemented and carefully coordinated with drug courts to make sure that

the promise of drug treatment is assured.

22

Part VI considers potential counterarguments including

the costs associated with the proposal, the equal protection clause of the U.S. Constitution, any harm-

ful effects to babies, and a woman’s right to individual privacy rights. Part VII of this Note concludes

that implementing the Tennessee statute in each state is a potentially advantageous way to provide

rehabilitation to mothers and solve the problem of drug use during pregnancy.

II. BACKGROUND INFORMATION ON NEWBORNS WITH NAS

A. NAS

A newborn suffers from NAS when exposure to certain drugs in utero creates drug withdrawal

after birth.

23

This occurs when the baby’s drug consumption is abruptly stopped when the child is

detached from the mother’s umbilical cord.

24

Because the baby has developed physical dependence

on the drug, the newborn may develop a drug withdrawal syndrome known as NAS.

25

The syndrome

most commonly occurs in the context of antepartum opiate use, but other drugs have also been impli-

cated.

26

In addition to giving rise to NAS, illicit drug use during pregnancy is associated with a sig-

nificantly increased risk of other neonatal issues such as low birth weight and mortality.

27

Symptoms of NAS have been described in sixty to eighty percent of newborns exposed to heroin

or methadone in utero.

28

These newborns experience irritability, hypertonia, tremors, feeding intoler-

ance, emesis, watery stools, seizures, and respiratory distress.

29

Heroin-exposed infants may

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