Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs

In 1995, Hawaii enacted the "Drug Dealer Liability Act" which allows "[a]n individual who was exposed to an illegal drug in utero" to bring an action to recover damages against the distributors and marketers of the illegal drug actually used by the mother. Haw. Rev. Stat. § 663D-3 (to be repealed on June 30, 2003).

In an opinion by Idaho’s Attorney General, Idaho’s Child Protective Act, Idaho Code § 16-1603, "could be amended by the Idaho Legislature to provide specific legal rights and protections for the unborn," as the state does have a compelling interest in protecting potential human life from gestational drug abuse, but the Act presently would not permit the state to intervene in the case of gestational drug abuse in order to protect the fetus and an action brought under the Act would in all likelihood be dismissed for lack of jurisdiction. 1991 Op. Att’y. Gen. Idaho 5.

Illinois’ child abuse statute defines a "neglected child" as any child "who is a newborn infant whose blood, urine, or meconium contains any amount of a controlled substance . . . or a metabolite thereof, with the exception of a controlled substance or metabolite thereof whose presence in the newborn infant is the result of medical treatment administered to the mother or the newborn infant." 325 Ill. Comp. Stat. Ann. 5/3, amended by 1998 Ill. Legis. Serv. 90-684; see also 705 Ill. Comp. Stat. Ann. 405/2-3 (same definition under juvenile court laws).

The list of grounds of unfitness for a parent in terms of his or her ability to care for a child includes the rebuttable presumption "that a parent is unfit . . . with respect to any child to which that parent gives birth where there is a confirmed test result that at birth the child’s blood, urine, or meconium contained any amount of a controlled substance . . . and the biological mother of this child is the biological mother of at least one other child who was adjudicated a neglected minor . . . ." 750 Ill. Comp. Stat. Ann. 50/1.D(k).

Prima facie evidence of abuse or neglect is established with a medical diagnosis of fetal alcohol syndrome, a medical diagnosis of a minor at birth of withdrawal symptoms from narcotics or barbiturates, or

(f) proof that a parent, custodian or guardian of a minor repeatedly used a drug, to the extent that it has or would ordinarily have the effect of producing in the user a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality . . .

(g) proof that a parent, custodian, or guardian of a minor repeatedly used a controlled substance . . . in the presence of the minor or a sibling of the minor is prima facie evidence of neglect. . . .

(h) proof that a newborn infant's blood, urine, or meconium contains any amount of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act [720 Ill. Comp. Stat. Ann. 570/102, amended by 1998 Ill. Legis. Serv. 90-742.], or a metabolite of a controlled substance, with the exception of controlled substances or metabolites of those substances, the presence of which is the result of medical treatment administered to the mother or the newborn, is prime facie evidence of neglect.

It is a Class 1 felony in Illinois to deliver a controlled substance to someone known to be pregnant. The perpetrator is subject to a term of imprisonment twice the maximum otherwise authorized under law. 720 Ill. Comp. Stat. Ann. 570/407.2.

It is a Class 2 felony to sell or deliver "for commercial consideration any item of drug paraphernalia to a woman" known to be pregnant. 720 Ill. Comp. Stat. Ann. 600/3.

One of the functions of the "grandparent child care program," which provides services to grandparents who have custody of their grandchildren, is to "establish an informational and educational program for grandparents and other relatives who provide primary care for children who are at risk of child abuse, neglect, or abandonment or who were born to substance-abusing mothers." 20 Ill. Comp. Stat. Ann. 505/34.11.

The Department of Public Health is required to "conduct an ongoing, statewide education program to inform pregnant women of the medical consequences of alcohol, drug and tobacco use and abuse." 20 Ill. Comp. Stat. Ann. 2310/55.54.

The legislature requires that every retailer of alcohol must display a sign with the following message: "GOVERNMENT WARNING: ACCORDING TO THE SURGEON GENERAL, WOMEN SHOULD NOT DRINK ALCHOLIC BEVERAGES DURING PREGNANCY BECAUSE OF THE RISK OF BIRTH DEFECTS." 235 Ill. Comp. Stat. Ann. 5/6-24a.

Some fines collected pursuant to one statute under Illinois’ Controlled Substances Act are set aside "for the treatment of pregnant women who are addicted to alcohol, cannabis or controlled substances and for the needed care of minor, unemancipated children of women undergoing residential drug treatment." 720 Ill. Comp. Stat. Ann. 570/411.2.

The legislature mandated the establishment of a Substance Abuse Services Fund in certain counties. Money from the fund must be used for "the establishment and maintenance of facilities and programs for the medical care, treatment or rehabilitation of all persons suffering from substance abuse problems, including the hospitalization of pregnant women who are addicted to alcohol, cannabis or controlled substances and for needed care of their newborn children." 55 Ill. Comp. Stat. Ann. 5/5-1086.1.

any pregnant person in this State who is addicted . . . . The Department of Human Services shall notify the local Infant Mortality Reduction Network service provider or Department funded prenatal care provider in the area in which the person resides. The service provider shall prepare a case management plan and assist the pregnant woman in obtaining counseling and treatment from a local substance abuse service provider licensed by the Department of Human Services or a licensed hospital which provides substance abuse treatment services. The local Infant Mortality Reduction Network service provider and Department funded prenatal care provider shall monitor the pregnant woman through the service program.

Under the state's Cannabis and Controlled Substances Tort Claims Act, the legislature found that "the abuse of cannabis and controlled substances . . . causes death or severe and often irreversible injuries to newborn children." 740 Ill. Comp. Stat. Ann. 20/2.

Among the responsibilities of a state committee on substance abuse and pregnancy are: to provide guidance on the development and enhancement of "intervention, prevention and treatment objectives and standards, educational and outreach programs, and support services specific to the needs of women;" and to assist the state in developing a plan to provide "child care services, at no or low cost, to addicted mothers with children who are receiving substance abuse treatment services." 20 Ill. Comp. Stat. Ann. 301/10-25.

In 1989, the legislature enacted the Drug Dealer Liability Act the purpose of which was "to provide a civil remedy for damages to persons in a community injured as a result of illegal drug use. These persons include . . . infants injured as a result of exposure to drugs in utero ('drug babies')." 740 Ill. Comp. Stat. Ann. 57/5. The Act lists among the persons who can bring an action for damages "individual[s] who [were] exposed to an illegal drug in utero." 740 Ill. Comp. Stat. Ann. 57/25.

Illinois’ comprehensive statute setting forth the responsibilities of the Department of Health with regard to pregnant women who use drugs requires the department to: conduct and report demographic research; seek funding for and establish effective outreach programs targeted to women at risk; maintain up-to-date referral lists of treatment providers; create and publish educational materials; create a manual for service providers to assist them in identifying women at risk, to ensure a "multidisciplinary delivery of services to addicted pregnant women, addicted mothers and their children," and to instruct them about the "effects of substance abuse on infants and guidelines on the symptoms, care, and comfort of drug-withdrawing infants;" and maintain statistics on the number of drug-affected infants. 20 Ill. Comp. Stat. Ann. 301/5-10.

The Illinois Department of Health has the responsibility of maintaining an "exchange of referral information" among medical providers and substance abuse treatment providers, and an "updated and comprehensive list of medical and social service providers by geographic region." The Department is to receive input from the state’s Committee on Women's Alcohol and Substance Abuse Treatment. Receipt of state grants and contracts is conditioned on substance abuse treatment providers’ acceptance of pregnant women. The Department is directed to "create or contract with" treatment providers geared towards the "care and treatment of low income pregnant women." The statute also directs that priority be "given to addicted and abusing women who: (A) are pregnant, (B) have minor children, (C) are both pregnant and have minor children, or (D) are referred by medical personnel because they either have given birth to a baby addicted to a controlled substance, or will give birth to a baby addicted to a controlled substance." 20 Ill. Comp. Stat. Ann. 301/35-5.

The Adolescent Family Life Program is designed to "document the incidence of and coordinate services to ‘high risk pregnant adolescents,’" defined as "a person at least 12 but not more than 18 years of age who uses alcohol to excess, is addicted to a controlled substance, or habitually uses cannabis and is pregnant." 20 Ill. Comp. Stat. Ann 301/35-10.

Treatment Improvement/Priority Treatment for Pregnant Women—Education and Awareness—Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

Health care providers are required to "recommend, to any pregnant woman who is being provided prenatal services and is suspected of drug abuse or is addicted . . . referral to a local substance abuse treatment provider licensed by the Department of Human Services or to a licensed hospital which provides substance abuse treatment services." The Department of Health and the Department of Human Services may provide information about substance abuse during pregnancy in a public awareness campaign. The statute prohibits the Illinois Department of Public Aid and the Department of Human Services from sanctioning a recipient based solely on her substance abuse. 305 Ill. Comp. Stat. Ann. 5/5-5.

(1) . . . (A) has an injury; (B) has abnormal physical or psychological development; or (C) is at a substantial risk of a life threatening condition; that arises or is substantially aggravated because the child’s mother used alcohol, a controlled substance, or a legend drug during pregnancy; and (2) the child needs care, treatment, or rehabilitation that the child: (A) is not receiving; or (B) is unlikely to be provided or accepted without the coercive intervention of the court.

A child is also deemed "in need of services if "(1) the child is born with: (A) fetal alcohol syndrome; or (B) any amount, including a trace amount, of a controlled substance or a legend drug in the child’s body; and (2) the child needs care, treatment, or rehabilitation that: (A) the child is not receiving; or (B) is unlikely to be provided or accepted without the coercive intervention of the court." Ind. Code Ann. § 31-34-1-10.

For the purposes of Indiana’s child abuse statutes, child abuse or neglect "refers to a child who is alleged to be a child in need of services." Ind. Code. Ann. § 31-9-2-14.

When a child is found to be "in need of services," a court may order a variety of remedies, including removing the child from the home, requiring the parents of the child or the child to receive services, fully emancipating the child, or entering a protective order on behalf of the child. Ind. Code Ann. § 31-34-20-1.

A law enforcement official may take into custody anyone who is believed to be "the alleged perpetrator of an act against a child who the law enforcement officer believes to be a child in need of services as a result of the alleged perpetrator's act." The individual is to be taken into custody "only for the purpose of removing the alleged perpetrator from the residence where the child believed to be in need of services resides." Ind. Code Ann. § 31-34-2-2.

The Drug Dealer Liability Act allows "individual[s] who [were] exposed to an illegal drug in utero" to bring an action "for damages caused by an individual drug user's use of an illegal drug." Ind. Code Ann. § 34-24-4-2.

Among the information to be given to clients and families utilizing birth centers is information on the effects of smoking and substance abuse on a developing fetus. Iowa Code. Ann. § 135G.9 (West 1998).

Health practitioners are required to perform a "medically relevant test" when s/he

discovers in a child physical or behavioral symptoms of the effects of exposure to cocaine, heroin, amphetamine, methamphetamine, or other illegal drugs, or combinations or derivatives thereof, which were not prescribed by a health practitioner, or if the health practitioner has determined through examination of the natural mother of the child that the child was exposed in utero.

The practitioner is required to report any positive test result to the state, which begins an investigation upon receipt of the report. The governing statute provides that "[a] positive test result obtained prior to the birth of a child shall not be used for the criminal prosecution of a parent for acts and omissions resulting in intrauterine exposure of the child to an illegal drug." Iowa Code. Ann. §232.77(2).

Attending physicians may conduct a "medically relevant test" on suspected chemically exposed infants. Such a test is defined as "a test that produces reliable results of exposure to cocaine, heroin, amphetamine, methamphetamine, or other illegal drugs, or combinations or derivatives thereof, including drug urine screen test." Iowa Code. Ann. §232.73.

Iowa created a council on chemically exposed infants and children as a subcommittee of the committee on maternal and child health of the community health division of the Iowa department of public health "to help the state develop and implement policies to reduce the likelihood that infants will be born chemically exposed, and to assist those who are born chemically exposed to grow and develop in a safe environment." Iowa Code. Ann. § 235C.1. The Council is responsible for: collecting data on chemically exposed infants and the costs of caring for such infants; making recommendations on public awareness campaigns and training for medical providers; developing strategies for identification and intervention; seeking funding to enhance treatment services to women and children; developing strategies for identifying chemically exposed infants when they enter the school system and providing special services to them; assisting in expanding "appropriate placement options for chemically exposed infants and children who have been abandoned by their parents or cannot safely be returned home"; and determine whether treatment providers are discriminating against substance abusing pregnant women. Id. § 235C.3.

Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

State-funded substance abuse treatment programs are prohibited from discriminating against people seeking treatment solely because a person is pregnant, unless the program makes an appropriate referral to another program. Iowa Code. Ann. § 125.32A.

The Secretary of Health and Environment is required to provide educational materials and guidance to medical professionals who provide services to pregnant women about the services available to women and the "perinatal effects of tobacco, the use of alcohol, and the use of any controlled substance . . . for nonmedical purposes." Kan. Stat. Ann. § 65-1,161. The Secretary is also required to develop an educational program for medical professionals which will assist them in: "(1) Assuring accurate and appropriate patient education regarding the effects of drugs on pregnancy and fetal outcome; (2) taking accurate and complete drug histories; and (3) counseling techniques for drug abusing women to improve referral to and compliance with drug treatment programs." Id. § 65-1,162.

Kansas has a toll-free information line in the state to provide information on resources for substance abusing pregnant women. Kan. Stat. Ann. § 65-1,166.

Identification, Reporting, Testing— Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

The state Secretary of Health and Environment is required to develop a "risk assessment profile to assist health care providers [to] screen pregnant women for prenatal substance abuse." A health care provider who identifies a pregnant woman at risk for prenatal substance abuse may refer the patient, upon consent, to the local health department for services, by providing her name to the department. The governing statute provides that "[t]here shall be no civil or criminal cause of action against a health care provider related to the rendering or failure to render any service under this section [and] referral and associated documentation . . . shall be confidential and shall not be used in any criminal prosecution." Kan. Stat. Ann. § 65-1,163.

Pregnant women referred for substance abuse treatment shall be given "first priority user of substance abuse treatment available through social and rehabilitation services." The governing statute provides for the confidentiality of treatment records and reports and forbids publicly-funded treatment facilities from discriminating against women solely because they are pregnant. Kan. Stat. Ann. § 65-1,165.

Identification, Testing, Reporting— Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

In addition to conducting mandatory testing of all pregnant women for syphilis, attending health care practitioners may screen pregnant women for alcohol or substance dependency or abuse. Physicians

may administer a toxicology test to a pregnant woman [and/or her newborn infant] within eight (8) hours after delivery to determine whether there is evidence that [the mother] has ingested alcohol, a controlled substance, or a substance identified on the list provided by the [Cabinet for Human Resources], or if the woman has obstetrical complications that are a medical indication of possible use of any such substance for a nonmedical purpose.

The attending physician has the duty of evaluating positive test results and to determine whether to make a report to the state. The governing statute provides that "[n]o prenatal screening for alcohol or other substance abuse or positive toxicology finding shall be used as prosecutorial evidence." Toxicology testing cannot be done without first providing notice to the woman upon whom the test will be conducted. Ky. Rev. Stat. Ann. § 214.160.

Oversight Committees, Task Forces, Research— Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

The state Cabinet for Human Resources is authorized to "conduct periodic anonymous surveys to determine the prevalence within the Commonwealth of drug and alcohol use during pregnancy. These periodic surveys may include, but are not limited to, toxicology tests to determine the presence of alcohol, controlled substances, or other drugs which have not been prescribed due to medical necessity." Testing may be done without a physician’s order and without the consent of the patient or parent. Results of individual toxicology tests are confidential and are to be compiled in an anonymous, aggregate fashion. The governing statute provides that

[n]o test result obtained pursuant to this section shall be admissible in any court or other hearing as evidence in any proceeding, criminal or civil, against the individual subject of the test [and that no] hospital shall incur any liability, except for negligence, for performing any test . . . or for reporting the result of the test pursuant to any administrative regulation.

Kentucky has created a Substance Abuse, Pregnancy and Women of Childbearing Age Work Group designed to plan and coordinate the activities of the state with regard to substance dependency and abuse during pregnancy. The Work Group will assess the extent of the problem; identify, develop, and coordinate resources for pregnant women at risk of alcohol and substance dependency or abuse and exposed infants and children; and submit a biennial report to the state. Ky. Rev. Stat. Ann. § 222.021.

The legislature has provided that "[a]ny public assistance recipient under Title IV of the Federal Social Security Act and any federal food stamp program recipient who has been convicted of a drug felony after August 22, 1996, may remain eligible for the program benefits if the recipient . . . is pregnant, and the recipient is otherwise eligible." Ky. Rev. Stat. Ann § 205.2005.

The state’s Cabinet for Human Resources was authorized to establish four or more pilot projects within the state to

demonstrate the effectiveness of different methods of providing community services to prevent alcohol and substance abuse by pregnant females; improving agency coordination to better identify the pregnant substance abuser and other females who have substance abuse problems; linking with community services and treatment for the chemically dependent woman, her children, and other family members; and gaining access to early intervention services for infants in need.

Legislative Findings, Mandates, Declarations—Treatment Improvement/Priority Treatment for Pregnant Women— Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

In choosing a strategy to deal with the problem of perinatal exposure to alcohol and drugs, the Louisiana Legislature adopted "as the preferred methods, prevention, intervention, and treatment alternatives rather than punitive actions to ameliorate the problems related to . . . medical and social risk factors." The legislature directed the Department of Health and Hospitals to "establish a program to provide addictive disorders services to eligible pregnant women. Such services shall ensure the availability of appropriate addictive disorders treatment programs that do not discriminate against pregnant women or women with young children." The program is to: (1) ensure that addictive disorders treatment programs do not discriminate against pregnant women or women with young children; (2) increase public awareness about addictive disorders; (3) develop criteria giving pregnant women priority access to publicly funded addictive disorders treatment programs; (4) develop residential treatment programs designed for addiction-disordered women and children; and (5) encourage health care professionals to identify addiction-disordered pregnant women and make referrals to programs. La. Rev. Stat. Ann. § 46:2505.

A Commission on Perinatal Care and Prevention of Infant Mortality was created within the state’s Department of Health and Hospitals. The Commission was to research state laws that impact perinatal care, compile information about infant mortality, and "propose a plan for an equitable system of financing comprehensive health and social services for indigent pregnant women and infants." The goal of the Commission was to reduce the prevalence of infant mortality in the state and to "[e]ducate women of child-bearing age to be able to choose food wisely and understand the hazards of smoking, alcohol, pharmaceutical products, and other drugs during pregnancy and nursing." La. Rev. Stat. Ann. § 40:2018.

Louisiana created a Council to Prevent Chemically Exposed Infants within the Department of Health and Hospitals, division of alcohol and drug abuse. The goal of the Council is to "assist the state in developing policies to reduce the likelihood that infants will be born chemically exposed." La. Rev. Stat. Ann. § 46:2511. A "chemically exposed infant" is defined as "an infant who shows evidence of exposure to or the presence of alcohol, cocaine, heroin, amphetamine, methamphetamine, or other illegal drugs or combinations or derivatives thereof which were not prescribed by a health professional." Id. § 46:2505.

The Council is empowered to gather data on the prevalence of chemically exposed infants and the extent to which services are available to pregnant women who use drugs, and to "assist the state in developing policies to reduce the number of infants who are born chemically exposed." The Council is directed to make recommendations "regarding state laws, policies, or programs to reduce the incidence of chemically exposed infants and to improve effective treatment services for pregnant women and chemically exposed infants;" about how to improve services to pregnant substance users; and on conducting a public education campaign aimed at the general public, healthcare professionals, and at-risk populations. La. Rev. Stat. Ann. § 46:2514.

The Louisiana Drug Dealer Liability Act allows "[a]n individual who was exposed to an illegal controlled substance in utero" to "bring an action for damages caused by an individual's use of an illegal controlled substance against" any of the people enumerated in the statute who were involved with the drug transaction. La. Rev. Stat. Ann. § 9:2800.63.

Medical, psychological, and developmental histories of adoptable children are to be provided to prospective adoptive parents, including information about any drug or medication taken by the child’s biological mother during

pregnancy and the biological parent’s history of drug and alcohol use. Me. Rev. Stat. Ann. tit.18-A, § 9-30.4.

As a factor to be considered in a judicial determination for the termination of parental rights, a court is required to consider whether "a child was born . . . addicted to or dependent on cocaine, heroin, or a derivative thereof; or . . . with a significant presence of cocaine, heroin, or a derivative thereof in the child’s blood as evidenced by toxicology or other appropriate tests; and . . . the natural parent refuses admission into a drug treatment program or failed to fully participate in a drug treatment program . . . ." Md. Code Ann., Fam. Law § 5-313(d)(1)(iv).

There is a presumption that a child is not receiving ordinary and proper care and attention if a "child was born . . . addicted to or dependent on cocaine, heroin, or a derivative thereof; or . . . with a significant presence of cocaine, heroin, or a derivative thereof in the child’s blood as evidenced by toxicology or other appropriate tests." Md. Code Ann., Cts. & Jud. Proc. § 3-801.1.

[p]romptly after receiving a report from a hospital or health practitioner of suspected neglect related to drug abuse and conducting an appropriate investigation . . . file a petition alleging that the child is in need of assistance[,] offer the mother admission into a drug treatment program[,] . . . initiate a judicial proceeding to terminate a mother’s parental rights, if the local department offers the mother admission into a drug treatment program under this subsection within 90 days after the birth of the child and the mother . . . does not accept admission to the program or its equivalent within 45 days after the offer is made . . . or fails to fully participate in the program or its equivalent.

Upon receipt of a report of "suspected neglect related to drug abuse," the Department of children’s services is authorized to file a petition alleging that a child is in need of assistance. A proceeding to terminate a mother’s parental rights may be initiated if the mother has been offered admission to a drug treatment program within 90 days after the child is born and the mother "does not accept admission to the program or its equivalent within 45 days after the offer is made; or . . . fails to fully participate in the program or its equivalent." Md. Code Ann., Fam. Law § 5-710(b).

Maryland developed a Task Force to Study Increasing the Availability of Substance Abuse Programs, charged with the task of developing a comprehensive strategy for funding substance abuse programs, and examining the availability of substance abuse programs designed for women, pregnant women, and women with children. Md. Ann. Code, art. 41, § 18-316(a) & (d)(6).

Publicly-funded (either partially or in whole) substance abuse treatment programs are required to accept pregnant and postpartum women for treatment on a priority basis. Such programs must also have in place a referral system to medical services and are to be linked by referral agreements with local departments of health and socials services. Postpartum means one year following the end of pregnancy. Md. Code Ann., Health-Gen. § 8-403.1.

Treatment Improvement/Priority Treatment for Pregnant Women—Civil Child Abuse Statutes

The Departments of Human Resources and Health & Mental Hygiene are required to develop "intervention systems" in four of the state’s counties to provide "drug treatment for a mother of a child who is born drug exposed and supportive services for the family of the child." Such intervention is to occur where: "(1) a child is born drug exposed; and (2) where medical personnel have determined that the child is at high risk of abuse or neglect." Assistance in obtaining drug treatment and supportive services in order to maintain the family are offered to the mother of a drug exposed child. A drug exposed child is to be taken into state custody where: (1) the mother refuses or fails to complete drug treatment; (2) the mother is unable to provide adequate care for the child; and (3) the father is unable to provide such care. Md. Code Ann., Fam. Law § 5-706.3.

Funding for prenatal and maternal health programs from the state’s Health Protection Fund is conditioned on such programs’ "incorporat[ion of] smoking cessation assistance and guidance regarding the harmful effects of smoking on fetal development." Mass. Gen. Laws Ann. ch. 29, § 2GG(c).

State regulations require all Department of Health operated and maintained birth centers to provide "a program of prenatal education that shall include the importance of nutrition, preparation for birth and breast feeding, and information on adverse effects of smoking, alcohol and other drugs." Mass. Regs. Code tit. 105, § 142.620(E).

The Division of Medical Assistance will pay for special substance abuse treatment services in treatment programs. Among those special services are services for pregnant women. Mass. Regs. Code tit.130, § 418.410.

Massachusetts requires an immediate report if a child "is determined to be physically dependent upon an addictive drug at birth . . ." The Department of Public Welfare is then required to investigate the allegation and notify the parent of the "the social services that the department intends to provide to the child or his family" within sixty days of receiving the report. Mass. Gen. Laws Ann. ch. 119, § 51A.

State regulations require all hospitals, as part of the licensing requirements, to have written protocols for their maternal-newborn services for "the hospital management and support of patients from identified groups in the population served by the facility, who have special needs, e.g., adolescents, and mothers with known cognitive impairments, psychiatric or substance abuse problems." Mass. Regs. Code tit. 105, § 130.615(H).

All methadone treatment programs in the state must take precautions with pregnant women on methadone maintenance programs because of "all its attendant dangers during pregnancy." "Dosage levels shall be maintained as low as possible," and the treatment center must make "arrangements for the provision of pre-natal and delivery services." Mass. Regs. Code tit. 105, § 750.720 (C)(5).

Prospective adoptive parents are to be notified of, among other things, "an account of the child’s prenatal care; medical condition at birth; any drug or medication taken by the child's mother during pregnancy." Mich. Comp. Laws Ann. § 710.27(b).

The Michigan State Legislature appropriated "no less than $200,000.00 to provide education and outreach to targeted populations on the dangers of neonatal addiction and fetal alcohol syndrome and further develop its infant support services to target families with infants with fetal alcohol syndrome or suffering from drug addiction" for the fiscal year 1999-2000. H.B. 4299, 90th Leg., Reg. Sess. (1999) (enacted).

A person required to report suspected child abuse "who knows, or from the child’s symptoms has reasonable cause to suspect, that a newborn infant has any amount of alcohol, a controlled substance, or a metabolite of a controlled substance in his or her body shall report" this to the state agency for child protection. Such a report is not required if the presence of such substances is due to valid medical treatment of the mother or infant. A report under this provision leads to an investigation and possible forwarding of information to law enforcement officials. Mich. Comp. Laws Ann. § 722.623a.

As part of the state’s Drug Dealer Liability Act, "[o]ther than an individual abuser, a person injured by an individual abuser may bring an action for damages against a person who participated in illegal marketing of the market area controlled substance used by the individual abuser." Among those who have standing to bring an action is "[a] child whose mother was an individual abuser while the child was in utero." Mich. Comp. Laws Ann. § 691.1607.

Neglect is defined as, among other things, "prenatal exposure to a controlled substance . . . used by the mother for a nonmedical purpose, as evidenced by withdrawal symptoms in the child at birth, results of a toxicology test performed on the mother at delivery or the child at birth, or medical effects or developmental delays during the child's first year of life that medically indicate prenatal exposure to a controlled substance." Minn. Stat. Ann. § 626.556(2)(c).

Upon receiving a report that a pregnant woman has used a controlled substance during her pregnancy, a local welfare agency "shall immediately conduct an appropriate assessment and offer services indicated under the circumstances [and] may also [seek] an emergency admission" of the pregnant woman under Minnesota’s Civil Commitment Act (Minn. Stat. Ann. § 253B.05). Minn. Stat. Ann. § 626.5561(1) & (2).

State statute requires that the "board of medical practice and board of nursing shall require by rule that family practitioners, pediatricians, obstetricians and gynecologists, and other licensees who have primary responsibility for diagnosing and treating fetal alcohol syndrome in pregnant women or children receive education on the subject of fetal alcohol syndrome and fetal alcohol effects, including how to: (1) screen pregnant women for alcohol abuse; (2) identify affected children; and (3) provide referral information on needed services." Minn. Stat. Ann. § 214.12.

Any place licensed for the retail sale of alcoholic beverages must post a sign that includes, among other things, "a warning statement regarding drinking alcohol while pregnant." Minn. Stat. Ann. § 340A.410.

A physician who suspects that obstetrical complications may be due to a pregnant woman’s use of drugs is required to administer toxicology tests to both the pregnant woman and the infant within eight hours after delivery. The physician is required to report positive results as per the state’s child abuse reporting statutes. "A negative test result does not eliminate the obligation to report under section 626.5561, if other evidence gives the physician reason to believe the patient has used a controlled substance for a nonmedical purpose." Confirmatory tests are required under this statute. Minn. Stat. Ann. § 626.5562.

Mandated reporters of child abuse and neglect must "immediately report to the local welfare agency if the person knows or has reason to believe that a woman is pregnant and has used a controlled substance for a nonmedical purpose during the pregnancy." Minn. Stat. Ann. § 626.5561.

By statute, "abuse of alcohol" includes the following: if a woman required alcohol detoxification during the pregnancy or if there is a positive result from an alcohol screening test. A person required to report under the state’s child abuse reporting laws may either arrange for drug screening for a woman the reporter suspects is pregnant and abusing alcohol, or make a report to the local welfare agency or maternal substance abuse project. If the woman is referred for screening and fails to either complete screening or comply with the resulting recommendations, a report is required. Adult household members may also make a voluntary report. Local welfare agencies are required to react to such reports within five working days by conducting an assessment and offering services. The state will collect data on the number of reports and referrals and the number of women who receive or refuse services. Minn. Stat. Ann. § 626.5563.

As part of the statute that creates the Hennepin county medical examiner's office, the legislature requires that "all sudden or unexpected deaths and all deaths which may be due entirely, or in part, to any factor other than natural disease" be reported to the medical examiner for evaluation. These deaths include, among others, "deaths of unborn or newborn infants in which there has been maternal use of or exposure to unprescribed controlled substances." Minn. Stat. Ann. § 383B.225 subd. 5(16).

The state commissioner of health is charged with the duty of "design[ing] and implement[ing] a coordinated prevention effort to reduce the rates of fetal alcohol syndrome and fetal alcohol effects, and reduce the number of drug-exposed infants." To do this, the commissioner is required to conduct research to determine the prevalence of the problem in the state and how best to address it, provide training to health care professionals and human services workers, and conduct a public awareness media campaign. Minn. Stat. Ann. § 145.9265.

Treatment Improvement/Priority Treatment for Pregnant Women—Services to Children

The state is to develop comprehensive maternal and child health and social service programs to address the needs of children exposed to controlled substances and alcohol at birth. The programs are to serve children through preschool years. Treatment programs are to be developed for children between the ages of 6 and 12 who are in need of chemical dependency treatment. Funding shall be made available to programs providing comprehensive drug treatment for pregnant women and women with children. Early intervention programs are to be developed to identify and provide services to children and families at risk due to substance abuse. Minn. Stat. Ann. § 254A.17

No statutes found relating to pregnant women and the use of alcohol or illegal substances

Training shall be provided to social service and other civil servants dealing with pregnant women and children in issues affecting pregnant mothers and their babies, and developmental impairments of exposed infants and treatment resources for drug-abusing families. Mo. Ann. Stat. § 191.735(2).

Physicians providing obstetrical or gynecological services are required to counsel all pregnant patients about the effects of cigarette smoking, and the use of alcohol and controlled substances on perinatal development. Mo. Ann. Stat. § 191.725.

A program is to be created to provide education to physicians caring for pregnant women and providing gynecological care about: how to take complete drug histories from pregnant patients; the effects of cigarettes, alcohol, and controlled substances on pregnancy; and counseling techniques. Mo. Ann. Stat. § 191.727.

The Department of Mental Health's Comprehensive Substance Treatment and Rehabilitation programs must provide clients basic information regarding the "[e]ffects of alcohol and other drug abuse upon pregnancy and child development." Mo. Code Regs. tit. 9, § 30-8.50(45)(F).

The legislature created a community grants program known as "Community 2000." The program is run through the division of alcohol and drug abuse within the department of mental health. One of the goals of the local commissions set up as part of the Community 2000 program must be "[t]he reduction of prenatal and perinatal exposure to alcohol and other drugs." Mo. Ann. Stat. § 191.835.

Protocols are to be developed based on a "risk assessment profile" to identify high risk pregnancies. Coordinated services are to be offered to a woman identified as having a high risk pregnancy. Mo. Ann. Stat. § 191.741.

Identification, Testing, Reporting—Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

A physician may refer a woman to the Department of Health where there is medical documentation of symptoms consistent with fetal alcohol or controlled substance exposure, a positive toxicology for controlled substances performed on either the mother or child, and a written assessment made by the health care provider which documents the child as being at risk of abuse or neglect. A physician may report abuse and neglect absent the above factors consistent with the state’s child abuse reporting laws. Services are to be offered to families that are the subject of such reports. The statute provides that "[r]eferral and associated documentation provided for in this section shall be confidential and shall not be used in any criminal prosecution." Mo. Ann. Stat. § 191.737.

For the purposes of determining the extent of fetal exposure to alcohol and drugs in the state, the Department of Health is required to conduct periodic tests on samples of pregnant women and infants for the presence of alcohol and drugs. Such testing is to be done anonymously without "identifying information as to the donor." Mo. Ann. Stat. § 191.745.

The Department of Mental Health established minimum criteria for admission to methadone clinics but has excepted pregnant women from those criteria so that they can get treatment immediately. Mo. Code Regs. tit. 9, § 30-3.610.

Treatment Improvement/Priority Treatment for Pregnant Women—Criminal Statutes

Pregnant women or women with custody of children under the age of 12 who either plead guilty or are found guilty of certain offense, and whose use of drugs contributed to the commission of the offense, may be required, as a condition of probation, to participate in the state’s Alt-care program, which provides comprehensive substance abuse treatment, if there is space in such a program. Mo. Ann. Stat. § 191.831.

Treatment Improvement/Priority Treatment for Pregnant Women—Identification, Testing, Reporting— Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

Physicians are required to inform women with high risk pregnancies about the availability of drug treatment and offer referrals. A report of high risk pregnancy is to be made by the physician to the department of health upon consent of the woman. The statute provides that "[r]eferral and associated documentation provided for in this section shall be confidential and shall not be used in any criminal prosecution." Mo. Ann. Stat. § 191.743.

Treatment Improvement/Priority Treatment for Pregnant Women—Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

[a] pregnant woman referred for substance abuse treatment shall be a first-priority user of available treatment. All records and reports regarding such pregnant woman shall be kept confidential. The division of alcohol and drug abuse shall ensure that family-oriented substance abuse treatment be available, as appropriations allow. Substance abuse treatment facilities which receive public funds shall not refuse to treat women solely because they are pregnant.

The state established a toll-free hotline for providing information on resources for substance abuse treatment and referrals for pregnant women. Mo. Ann. Stat. § 191.733

Montana Department of Commerce regulations prohibit a licensed direct entry midwife from accepting a woman with current drug or alcohol abuse or dependency as a client. Mont. Admin. R. 8.4.505(1)(a)(x).

Case management services are available for high risk pregnant women and their infants who are eligible for Medicaid. Neb. Rev. Stat. § 68-1058

A child is considered to be in "need of protection," meaning that the state will begin to investigate what social services the child needs, in Nevada if, among other things, "[h]e is suffering from congenital drug addiction or the fetal alcohol syndrome, because of the faults or habits of a person responsible for his welfare." Nev. Rev. Stat. Ann. § 432B.330(1)(b).

Nevada regulations require that all elementary school health programs include information about "the social causes contributing to the use of drugs and the effect of such use on society, such as babies suffering from fetal alcohol syndrome and babies who are born addicted to drugs." Nev. Admin. Code ch. 389, § 330(18). High school health programs must also include information describing the effect of drugs on pregnancy. Id. § 389.454(14).

In 1999, the legislature created the Advisory Subcommittee on Fetal Alcohol Syndrome of the Advisory Board on Maternal and Child Health. The subcommittee's purpose is to develop and carry out programs relating to the prevention and treatment of fetal alcohol syndrome. S.B. 197, 70th Leg., Reg. Sess. (1999) (enacted) (to be codified at Nev. Rev. Stat. Ann. § 442).

Although generally a person convicted of a drug felony after August 22, 1996, is not eligible to receive federal public assistance, a pregnant woman who has been convicted of a drug felony but who is participating in or has successfully completed a drug treatment program does not fall within that categorical exception. Nev. Rev. Stat. Ann. § 422.29316

Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs - Year 2000 Overview. Part 2