Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs

No marriage license "shall be issued until a brochure prepared by the department of health and human services . . . concerning fetal alcohol syndrome has been given to both parties." N.H. Rev. Stat. Ann. § 457:23.II.

The New Hampshire legislature created a task force to study the problems of prenatal exposure to alcohol, tobacco, and other drugs. The task force is empowered to conduct research and hold public hearings and is required to submit an annual report to the legislature and the governor. N.H. Rev. Stat. Ann. § 132:20.

New Hampshire's Controlled Drug Act allows for the prescription of methadone to pregnant and postpartum heroin addicts. N.H. Rev. Stat. Ann. § 318-B:10.VIII.(a).

Adoption agencies are required to provide prospective adoptive parents with information concerning the child’s background, including "the parent's complete medical histories, including conditions or diseases which are believed to be hereditary, any drugs or medications taken during pregnancy and any other conditions of the parent’s health which may be a factor influencing the child's present or future health." N.J. Stat. Ann. § 9:3-41.1.

The statute that allows for the Division of Youth and Family Services to take custody of a child whose "safety or welfare will be endangered unless proper care or custody is provided" applies explicitly to "include an application on behalf of an unborn child . . . ." N.J. Stat. Ann. § 30:4C-11.

Enhanced sentencing of twice the term of imprisonment, fine, penalty, or parole ineligibility is to be imposed on a person who is convicted of distributing controlled substances to a pregnant female or a person 17 years old or younger. It is no defense to the statute that the person so convicted did not know that the woman was pregnant. N.J. Stat. Ann. § 2C:35-8.

Under the Alcoholic Beverage Control Act, anyone with a Class C license must post a notice warning "patrons that alcohol consumption during pregnancy has been determined to be harmful to the fetus and can cause birth defects, low birth weight and Fetal Alcohol Syndrome, which is one of the leading causes of mental retardation." N.J. Stat. Ann. § 33:1-12a.

The New Jersey state legislature appropriated $671,000 for residential substance abuse treatment for pregnant and postpartum women in 1998. S.B. 2000, 208th Leg., Reg. Sess. (N.J. 1998).

State regulations provide that any infant born in the state who is diagnosed with a birth defect must be reported to the State Department of Health, Special Child Health Services Program. The list of birth defects includes fetal alcohol syndrome and probable fetal alcohol syndrome. N.J. Admin. Code tit. 8, § 20-1.2(a)1.i.(28).

As part of a 1999 act establishing the "Fost-Adopt Demonstration Program for Boarder Babies and Children" as part of the Division of Youth and Family Services, the Legislature declared that "New Jersey is experiencing a serious problem regarding infants and young children living in hospitals beyond medical necessity, or 'boarder babies' and 'boarder children,' many of whom are at risk of physiological, developmental and emotional problems because of prenatal exposure to drugs, alcohol or the HIV virus." 1999 N.J. Laws 86

New Mexico requires an Alcohol Server Education program for persons employed in the alcoholic beverage service industry. The program includes the study of the prevention of fetal alcohol syndrome and is intended, among other things, to reduce the frequency of alcohol-related birth defects. N.M. Stat. Ann. § 60-6E-2.

The Legislature created the "DWI program fund" for the purposes specified in the statute, which include the appropriation of funds "to the school of medicine at the university of New Mexico for prevention, research and intervention in the field of fetal alcohol syndrome." N.M. Stat. Ann. § 6-4-8B(12).

When a child is placed in substitute care or presented to a substitute care provider for the purpose of placement in foster care, the provider shall be given various pieces of information about the child, including whether the child is "at risk for or diagnosed with Fetal Alcohol Syndrome." N.M. Admin. Code tit. 8, § 27.3.24.1.1.

One of the requirements for family infant toddler early intervention services is that the child is an "eligible" child. An "eligible" child is defined as one with an "established condition," which includes fetal alcohol syndrome. N.M. Admin. Code tit. 7, § 30.8.7.25

Adoption agencies are required to provide prospective adoptive parents with information concerning the child’s background, including the "health and medical history of the parents at the time of the birth of the adoptive child, including all available information setting forth conditions or diseases believed to be hereditary, any drugs or medication taken during the pregnancy by the child's mother." N.Y. Dom. Rel. Law § 112(2-a).

Services provided to women receiving prenatal care may include prenatal risk assessment and health education regarding alcohol and tobacco use and substance abuse. N.Y. Pub. Health Law § 2522.

Any food product containing more than one-half of one per cent but not more than five per cent of alcohol by volume must bear the following statement: "Notice: This product contains alcohol used as a flavoring and, as with any product that contains alcohol: (I) women should not consume alcohol during pregnancy because of the risk of birth defects, and (ii) consumption of alcohol impairs your ability to drive a car or operate machinery, and may cause health problems." N.Y. Agric. & Mkts. § 200.13.

Under the state's Early Intervention Program for Infants and Toddlers with Disability and Their Families, a child with a disability is defined to include any child with a "diagnosed physical or mental condition that has a high probability of resulting in developmental delay, such as . . . fetal alcohol syndrome." N.Y. Pub. Health § 2541.5.

Any money received from the federal government under the Adoption and Safe Families Act of 1997's provision for Adoption Incentive Payments, see 42 U.S.C. § 673b, must be used to provide "preventive services" which include "substance abuse treatment services provided to pregnant women or a caretaker person in an outpatient, residential or in-patient setting." N.Y. Soc. Serv. § 409-a.10.

Under the Department of Health's Medical Assistance Benefits there is a program called "Pre-natal Care Assistance Program." The program requires that each pregnant woman have a care plan and that the care plan "encourage and assist the pregnant woman in obtaining necessary medical, nutritional, psychosocial, drug and substance abuse services appropriate to her identified needs and provide follow-up to ensure ongoing access to services." N.Y. Comp. Codes R. & Regs. tit. 10, § 85.40(e)(2)(ii).

Under the Department of Health's minimum standards for hospitals, hospitals are required to "assure the availability of prenatal childbirth education classes for all prebooked women which address as a minimum . . . the effects of smoking, alcohol and other drugs on the fetus . . . ." N.Y. Comp. Codes R. & Regs. tit. 10, § 405.21(c)(8)(iii). Similar classes must be provided at birth centers. Id. § 754.7(b)(2).

It is a Class D felony to sell or deliver a controlled substance to a pregnant woman or a child under the age of sixteen. It is no defense to the law that the person so convicted did not know that the recipient was pregnant. N.C. Gen. Stat. § 90-95 (e)(5).

The Division of Mental Health also administers a grant program for the federal Substance Abuse Prevention and Treatment Block Grant. To be eligible for the block grant funds, an area program must include substance abuse services for pregnant and parenting women and adolescents. N.C. Admin. Code tit. 10, r. 14C.1156(c)(7).

The Department of Human Resources Division of Mental Health "shall administer a program to provide comprehensive services to substance abusing pregnant women . . . ." "Services" is defined as including "primary medical, prenatal and pediatric care immunization, child care, transportation, gender specific substance abuse treatment and therapeutic intervention for children that address their developmental needs." N.C. Admin. Code tit. 10, r. 14C.1154(a),(b)

The Legislature established a fetal alcohol syndrome center as part of the department of neuroscience at the University of North Dakota School of Medicine. Among other things, the center issues yearly reports on the syndrome in the state and develops prevention activities. N.D. Cent. Code § 15-11-35.

The Legislature established "a clinic to provide both initial diagnostic assessment and reevaluation of children with fetal alcohol syndrome" within the University of North Dakota Medical Rehabilitation Hospital's Child Evaluation and Treatment Program. The program also will "provide consultative services to schools, community agencies, and parents to assist in serving children diagnosed with fetal alcohol syndrome." N.D. Cent. Code § 15-11-36

Identification, Testing, Reporting—Treatment Improvement/Priority Treatment for Pregnant Women

All pregnant women receiving medical services through a managed care organization are required to be screened for drug and alcohol use during their first prenatal medical examinations. If a medical provider determines that a pregnant woman may have a substance abuse problem, the provider is required to refer the woman for an assessment to be conducted by the Department of Alcohol and Drug Addiction Services, and to inform the woman about the possible effects of alcohol and other drugs on the fetus. Ohio Rev. Code Ann. § 5111.017.

A comprehensive program is to be developed by the Department of Alcohol and Drug Addiction Services to: determine the number of addicted pregnant women in the state; determine a way to intervene to eliminate addiction during pregnancy; provide for the continued monitoring of addicted pregnant women after the birth of their children; determine the number of infants born drug-exposed; provide for drug rehabilitation for such children. Ohio Rev. Code Ann. § 3793.15.

Adoption records must contain a record of the medical history of the adopted child, including

relevant information concerning the medical and psychological history of the minor's biological parents and relatives, including information concerning: . . . the consumption of drugs, medication or alcohol by the biological father or the biological mother at the time of conception and by the biological mother during her pregnancy with the minor; . . . allergies, diseases, illnesses, and other medical history of biological parents, other children of either biological parent, biological grandparents and other biological relatives, including but not limited to diabetes, high blood pressure, alcoholism, heart disease, cancer, and epilepsy or predisposition thereto; . . . any addiction or predisposition to addiction to drugs or alcohol by the biological parents, other children of either biological parent, biological grandparents or other biological relatives.

A child is a "deprived child" if the child "is in need of special care and treatment because . . . [the] child [was] born in a condition of dependence on a controlled dangerous substance, and the child’s parents, legal guardian, or other custodian is unable or willfully fails to provide such special care and treatment." Okla. Stat. Ann. tit. 10, § 7001-1.3A.14.c.

Finding that there are a growing number of grandparents that are becoming the primary caretakers of children born exposed to drugs or alcohol, the Oklahoma state legislature established an educational program for grandparents to inform them of:

1. The problems experienced by children being raised by grandparents; 2. The problems experienced by grandparents providing primary care for children who have special needs; 3. The legal system as it relates to children and grandparents; 4. The benefits available to children and grandparents providing primary care; and 5. A list of support groups and resources located throughout the state.

Four hundred thousand dollars appropriated and continued in 1993, 1995, and 1997 to the Department of Mental Health and Substance Abuse Services for the Center for Pregnant Women with Substance Abuse was continued and reappropriated in 1999. Okla. H.B. 1580, 47th Leg., 1st Sess. (1999) (enacted).

Health care professionals "attending the birth of a child who appears to be a child born in a condition of dependence on a controlled dangerous substance shall promptly report the matter to the county office of the Department of Human Services in the county in which such birth occurred." Okla. Stat. Ann. tit. 10, § 7103(A)(2).

As part of court-ordered treatment and service plans implemented following the removal of a child from her natural family, the Oklahoma Department of Human Services

[m]ay require . . . that the father of the child, legal guardian, legal custodian, stepparent or other adult person living in the home who is a drug-dependent person . . . and whose conduct has contributed to the dependency of such child or mother on the controlled dangerous substance . . . complete a treatment program . . . prior to the return of the child to the home; and . . . [m]ay require testing for substance abuse of the mother, father, legal guardian, legal custodian, stepparent or other adult person living in the home, on a monthly basis for a twelve-month period following completion of the substance abuse program and after return of the child to the home. A positive test of any such person shall be presented to the Department of Human Services and the district attorney.

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

The state Department of Human Services maintains a "Record of Infants Born Exposed to Alcohol and Other Harmful Substances" for research purposes, which includes basic demographic information and information about treatment offered to the mother. Information collected pursuant to the law will not be used to compel further examination, treatment, or supervision of the mother or child. Okla. Stat. Ann. tit. 63, § 1-550.3.

As part of the Drug Dealer Liability Act, any "individual who was exposed to an illegal drug in utero" can "bring an action for damages caused by use of an illegal drug by an individual" against the persons enumerated in the statute. Okla. Stat. Ann. tit. 63, § 2-424

NOTE: Within Oregon’s set of statutes dealing with the treatment of pregnant drug users, "substance" has the meaning of "controlled substance" as defined in Oregon, but also includes "alcoholic beverages or other substances with abuse potential." Or. Rev. Stat. § 430.900.

Prior to adoption , child care agencies must test children for "the hereditary or congenital effects of parental use of drugs or controlled substances." A physician must advise prospective adoptive parents of such effects. Or. Rev. Stat. § 418.325.

Any county clerk issuing a marriage license must also give to the licensees "a pamphlet describing the medical condition known as fetal alcohol syndrome, its causes and effects." Or. Rev. Stat. § 106.081. The pamphlet shall be provided by the Health Division of the Department of Human Resources. Id. § 431.825.

"Any person in possession of a valid retail liquor license, who sells liquor by the drink for consumption on the premises or sells for consumption off the premises, shall post a sign informing the public of the effects of alcohol consumption during pregnancy." Or. Rev. Stat. § 471.551.

Technical assistance is available to the state Office of Alcohol and Drug Abuse Programs on the "preparation of standards for county grant applications and to advise and assist counties and regions in planning for treatment of pregnant substance abusers." Or. Rev. Stat. § 430.950.

A standardized screening instrument to identify the use of substances during pregnancy is used by the Office of Alcohol and Drug Abuse Programs. Training is provided to health professionals who provide services to pregnant women on how to assess drug use in pregnancy. Or. Rev. Stat. § 430.955.

A risk assessment is to be performed on all pregnant women during the first trimester of pregnancy to determine if the woman is using drugs or alcohol. If the assessment indicates that a woman is using drugs or alcohol, referrals are to be made by the health care provider. Demographic information about the outcome of risk assessments is to be compiled. The Oregon law also states: "The provider, if otherwise authorized, may administer or prescribe controlled substances that relieve withdrawal symptoms and assist the patient in reducing the need for unlawful controlled substances according to medically acceptable practices." Or. Rev. Stat. § 430.920.

In order to minimize the cost to taxpayers of the increasing number of pregnant substance users and drug- and alcohol-affected infants, the Oregon legislature declared a need to adopt a "holistic approach" to addressing the needs of women, including medical, psychological, logistical, and educational needs. Or. Rev. Stat. § 430.905.

An Advisory Committee within the Department of Human Resources is required to study "the problem of substance-using pregnant and postpartum women and their infants. The study shall focus on prevention, education and treatment located in community, inpatient, outpatient and residential settings." The Committee is to develop a case management model for providing services that includes outreach, filling gaps in services, and creating new comprehensive services. Or. Rev. Stat. § 430.910.

Oregon developed pilot projects in local health departments designed to "alleviate the health related problems of pregnant and postpartum women and their infants which arise from substance use." The programs are to promote comprehensive and coordinated services, increase the availability of treatment options, improve the way the substance using pregnant women are identified and referred to treatment; improve birth outcomes and reduce the severity of impairment among children born to substance-using women; and improve overall healthcare to at-risk pregnant women. Or. Rev. Stat. § 430.925.

In order to prevent the need for protective services for an infant born to a drug using mother, health care providers are required to encourage and facilitate drug treatment for pregnant substance users. Or. Rev. Stat. § 430.915

The Department of Health will train staff of child protective services agencies and other state agencies to identify and refer pregnant women and mothers in need of drug or alcohol treatment and will establish referral networks between state agencies. Pa. Stat. Ann. tit. 71, § 554.

Under the Early Intervention Services System Act, a child under the age of three with fetal alcohol syndrome is included in the definition of "handicapped infants and toddlers." Pa. Stat. Ann. tit. 11, § 875-103.

Every hospital must maintain a written set of obstetrical services policies and procedures that includes "policies and procedures for the care and treatments of drug-dependent newborns." 28 Pa. Code § 137.21(b)(12)

A hospital's "neonatal intensive care unit" cares for "high-risk infants and those otherwise in need of intensive care." A "high risk infant" is defined to include "[a]n infant whose mother is drug addicted or habituated . . . ." 28 Pa. Code § 139.12(c)(4).

Grants are to be made by the Department of Health to provide comprehensive services to substance using pregnant women and mothers including residential treatment; therapeutic communities; substance abuse education; counseling for women and their children; support groups; parental skills training; job counseling; day care; and comprehensive referrals. The Department of Health will maintain and report statistics on the number of women referred to treatment, those denied treatment, and those placed on waiting lists. The statute includes a provision which ensures the "confidentiality of records regarding identifiable individuals enrolled in treatment programs." Pa. Stat. Ann. tit. 71, § 553

In a trial to prove that a child has been abused or neglected, an expert may be used to show that the child has fetal alcohol syndrome or drug withdrawal symptoms at birth -- both of which would constitute a prima facie case of abuse or neglect. R.I. Admin. Code § 03-040-420.II.D.4.a; id. § 03-141-000.II.F.2.c.1.

Town clerks providing a marriage license must also "provide a pamphlet describing the causes and effects of fetal alcohol syndrome." R.I. Gen. Laws § 15-2-3.1.

The Department for Children and Their Families has promulgated regulations governing situations when a prenatal clinic worker, professional, or other concerned individual calls the Child Abuse Hotline alleging that a pregnant woman is using drugs and/or alcohol. When such a call is made, "the information alleging drug and/or alcohol abuse is put into the [Child Abuse and Neglect Tracking System] computer as an Early Warning." Depending on whether there are "specific allegations" of abuse and/or neglect as well, an investigation may also be initiated. R.I. Admin. Code § 03-040-430.

A person who has legal custody of a child, is the parent or guardian of a child, or who is responsible for the child's care and support may not "place the child at unreasonable risk of harm affecting the child's life, physical or mental health, or safety" or "do or cause to be done unlawfully or maliciously any bodily harm to the child so that the life or health of the child is endangered or likely to be endangered." S.C. Code Ann. § 20-7-50(A). By interpretation of the South Carolina Supreme Court, a fetus is a "child" under the statute; thus, the statute applies to pregnant women who use drugs. See Whitner v. State, 492 S.E.2d 777 (1997).

The South Carolina Family Independence Act of 1995 makes ineligible for financial assistance any person who "has been identified as requiring alcohol and other drug abuse treatment service or who has been convicted of an alcohol related offense or a controlled substance violation or gives birth to a child with evidence of the effects of maternal substance abuse and the child subsequently is shown to have a confirmed positive test performed on a suitable specimen within twenty-four hours of birth . . . ." The statute allows for continued receipt of public assistance if such person "submits to random drug tests and/or participates in an alcohol or drug treatment program . . . ." S.C. Code Ann. § 43-5-1190.

As part of the Drug Dealer Liability Act, any "individual who was exposed to an illegal controlled substance in utero" can "bring an action for damages caused by an individual's use of an illegal controlled substance" against the persons enumerated in the statute. S.C. S.B. 102, 113th Leg. (1999) (enacted) (to be codified at S.C. Code Ann. § 44-54-40).

Participants in the state's Family Independence Program who give birth to a child who tests positive for drugs "shall participate in an alcohol or drug treatment program approved by the Department of Alcohol and Other Drug Abuse Services . . . as part of their Individual Self-Sufficiency Plan." S.C. Code Regs. 114-1130.Q

A pregnant woman who uses alcohol or drugs may be involuntarily committed to a treatment facility. S.D. Codified Laws Ann. § 34-20A-63.

A person can be committed upon the petition of a spouse, relative, physician, the administrator of a treatment facility, or any other "responsible" person. In order to commit a pregnant woman, the petition must allege that she is an alcoholic or drug abuser who habitually lacks self-control as to the use of alcoholic beverages or other drugs and that she is pregnant and currently abusing alcohol or drugs. S.D. Codified Laws Ann. § 34-20A-70.

As part of the state's Prenatal Education Act, "[a]ny primary health care provider of obstetrical care to a pregnant woman and any counselor who provides services to a pregnant woman shall educate all pregnant patients as to the prenatal effects of drug and alcohol." S.D. Codified Laws Ann. § 34-23B-1. The Department of Health and the Department of Human Services are to create a prenatal educational program for such health care providers or counselors. Id. § 34-23B-2. Also under the Act, age-appropriate educational materials on the subject of "the physiological effects caused by the use of drugs and alcohol on the developing child before and after birth" are to be developed and included in drug and alcohol education programs in the schools. Id. § 34-23B-3. The Department of Health and the Department of Human Services also must "maintain a toll-free information line for the purpose of providing information on resources for substance abuse treatment and for assisting with referral for substance abusing pregnant women." Id. § 34-23B-4.

All premises licensed to sell alcoholic beverages must display a sign created by the Department of Human Services "explain[ing] the dangers faced by pregnant women who consume alcohol." S.D. Codified Laws Ann. § 35-4-100.

"The department of health and the department of human services shall develop screening materials and criteria and make them available for use by primary providers for identification of high- and moderate-risk drug and alcohol use during pregnancy." S.D. Codified Laws Ann. § 34-23B-5.

Any "person who was exposed to an illegal drug in utero" can "bring an action for damages caused by another person's use of an illegal drug." S.D. Codified Laws Ann. § 34-20C-4

Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs - Year 2000 Overview. Part 3