Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs

Any licensee who sells alcoholic beverages at retail shall post a sign "contain[ing] a warning that drinking alcoholic beverages during pregnancy can cause birth defects, including fetal alcohol syndrome and fetal alcohol effects." Tenn. Code Ann. § 57-1-211(a).

The commissioner of the Department of Health is "authorized to plan, establish, and administer pilot projects to develop effective and efficient prevention and treatment services for low-income, pregnant substance abusers." The pilot projects should provide public information, community outreach, residential beds for rehabilitation, outpatient slots for treatment, family intervention services, specialized support services, enhanced physician oversight, and documentation and recordkeeping. Tenn. Code Ann. § 68-24-104(e)(1).

Services for low-income pregnant substance abusers may be available through the state’s health access program. Tenn. Code Ann. § 66-29-151(b)

The use of a controlled substance constitutes child abuse where such use "results in physical, mental, or emotional injury to a child." A child is also abused under the statute if she or he was "born addicted to alcohol or a controlled substance" and "who, after birth as a result of the mother’s use of the controlled substance or alcohol: (i) experiences observable withdrawal from the alcohol or controlled substance; (ii) exhibits observable or harmful effects in the child’s physical appearance or functioning; or (iii) exhibits the demonstrable presence of alcohol or a controlled substance in the child’s bodily fluids." Tex. Fam. Code Ann. § 261.001(1) & (7).

Under the Family Code, a court "may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has . . . been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription." Tex. Fam. Code Ann. § 161.001(1)(R).

As part of high school health education, students are to be taught "the harmful effects of certain substances on the fetus such as alcohol, tobacco, other drugs, and environmental hazards such as lead." Tex. Admin. Code tit. 19, § 115.32(b)(3)(C); id. § 115.33(c)(3)(C).

Drug and alcohol treatment programs within the Texas Commission on Alcohol and Drug Abuse must "implement procedures to identify members of priority populations and admit them before all others." At the top of the list are "pregnant injecting drug users" followed by "pregnant substance abusers." Tex. Admin. Code tit. 40, § 144.522.

If a treatment program "does not have the capacity to admit an injecting drug user or pregnant female, the program shall make every effort to place the individual in another treatment facility or provide access to interim services." Interim services for pregnant women must "provide information and education about the effects of alcohol and drug use on the fetus and referrals for prenatal care." Tex. Admin. Code tit. 40, § 144.525.

A facility providing chemical dependency treatment for "females of child-bearing age shall have at least one staff person with a documented knowledge of pregnant substance-abusing females and their care." Tex. Admin. Code tit. 40, § 148.114(l); id. § 148.202(k).

In order to receive Early Childhood Intervention case management services, the recipient must be eligible for Medicaid and have a developmental disability. A developmental disability includes "fetal alcohol syndrome or fetal alcohol effects." Tex. Admin. Code tit. 25, § 32.404

Failure to report fetal alcohol syndrome or fetal drug dependency of anyone required to report child abuse and neglect constitutes a class B misdemeanor. Utah Code Ann. § 62A-4a-411.

The state Division of Family Services "shall make a thorough investigation upon receiving either an oral or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug dependency, when there is reasonable cause to suspect [same]." Utah Code Ann. § 62A-4a-409(1). This statute also provides that written reports must be made to a "state central register," that an "interdisciplinary" and "team" approach to dealing with the investigation, and that "[a] division worker or child protection team member may, unless a parent or guardian of the child objects, take a child into temporary protective custody if there is reasonable cause to believe that the child is seriously endangered in its surroundings, that immediate removal is necessary for the protection of the child, and a peace officer is unavailable for assistance." Id. § 62A-4a-409(3), (4) & (8).

"When any person . . . determines that [a] child, at the time of birth, has fetal alcohol syndrome or fetal drug dependency . . . shall report that determination to the [Division of Family Services] as soon as possible." Utah Code Ann. § 62A-4a-404. Any licensed person attending the birth of a child or caring for a child is required to make a report if the child is born with fetal alcohol syndrome or fetal drug dependency. Id. § 62A-4a-404.

A report of fetal alcohol syndrome or fetal drug dependency is "confidential and may only be made available to: (a) a police or law enforcement agency investigating a report of known or suspected child abuse or neglect; (b) a physician who reasonably believes that a child may be the subject of abuse or neglect; (c) an agency that has responsibility or authority to care for, treat, or supervise a child who is the subject of a report; . . . (f) an office of the public prosecutor or its deputies[.]" Utah Code Ann. § 62A-4a-412.

Any "individual who was exposed to an illegal drug in utero" can "bring an action for damages caused by an individual's use of an illegal drug" against the persons enumerated in the statute. Utah Code Ann. § 58-37e-4

Prospective adoptive parents must receive information about the background of an adoptive child, including information regarding the child’s prenatal care and medical condition at birth, "any drug or medication taken by the minor's mother during pregnancy;" and the parent’s "health and genetic history, including any known hereditary condition or disease, the current health of each parent, a summary of the findings of any medical, psychological, or psychiatric evaluation of each parent completed prior to placement [and the parent’s] history of use of drugs and alcohol." Vt. Stat. Ann. tit. 15A, § 2-105.

Under the state's Assistance to Needy Families With Children program, a pregnant woman is not deemed unable to work due to a high-risk pregnancy solely because of a "pattern of substance abuse on the part of the pregnant woman." Vt. Admin. Code 13-170-003 § 2242

A child abuse report based on maternal drug use shall not be made in Virginia "if the mother sought substance abuse counseling or treatment prior to the child's birth." Va. Code Ann. § 63.1-248.6.

Preliminary protective order or emergency removal order may be made "[u]pon the filing of a petition, within twenty-one days of a child’s birth, alleging that an investigation has been commenced in response to a report of suspected abuse or neglect of the child" of perinatal addiction or fetal alcohol syndrome. Va. Code Ann. § 16.1-241.3.

(i) a finding made by an attending physician within seven days of a child’s birth that the results of a blood or urine test conducted within forty-eight hours of the birth of the child indicate that the presence of a controlled substance not prescribed for the mother by the physician, (ii) a finding by an attending physician made within forty-eight hours of a child’s birth that the child was born dependent on a controlled substance which was not prescribed by a physician for the mother and has demonstrated withdrawal symptoms, (iii) a diagnosis by an attending physician made within seven days of a child’s birth that the child has an illness, disease or condition which, to a reasonable degree of medical certainty, is attributable to in utero exposure to a controlled substance which was not prescribed by a physician for the mother or the child, or (iv) a diagnosis by an attending physician made within seven days of a child’s birth that the child has fetal alcohol syndrome attributable to in utero exposure to alcohol.

Physicians providing care to pregnant women must screen their patients for substance abuse of both legal and illegal substances. Physicians are required to provide warnings and information about birth outcomes to women who are screened positive for substance abuse. Va. Code Ann. § 54.1-2403.1.

Prohibitions on Punitive Sanctions/Guarantees of Confidentiality or Nondiscrimination

Results of any substance abuse assessment conducted by a physician during a pregnant woman’s prenatal care is "not admissible in any criminal proceeding." Va. Code Ann. § 54.1-2403.1(C).

Under the Virginia Birth-Related Neurological Injury Compensation Act, "disability or death caused by . . . maternal substance abuse" is excluded from the definition of "birth-related neurological injury." Va. Code Ann. § 38.2-5001.

To respond to the needs of substance abusing women and their children, the Secretary of Health and Human Services must develop criteria for "(i) enhancing access to publicly funded substance abuse treatment programs in order to effectively serve pregnant substance abusers, (ii) determining when a drug-exposed child may be referred to the early intervention services and tracking system available through Part H of the Individuals with Disabilities Education Act . . . , (iii) determining the appropriate circumstances for contact between hospital discharge planners and local departments of social services for referrals for family-oriented prevention services, when such services are available and provided by the local social services agency, and (iv) determining when the parent of a drug-exposed infant, who may be endangering a child's health by failing to follow a discharge plan, may be referred to the child protective services unit of a local department of social services." Va. Code Ann. § 2.1-51.15:1.

The Department of Medical Assistance Services has established expanded prenatal care services that include residential substance abuse treatment services for pregnant and postpartum women. The program is a "comprehensive, intensive residential treatment [program] to improve pregnancy outcomes by eliminating the substance abuse problem." Va. Admin. Code tit. 12, § 30-50-510.B.5. The program has various standards that must be followed and are listed at § 30-60-147, and in order for there to be Medicaid reimbursement, the criteria listed in § 30-130-565 must be met.

Under the Department of Mental Health, Mental Retardation and Substance Abuse Service's rules and regulations for the licensure of facilities and providers of mental health, mental retardation, and substance abuse services, "[i]f the provider offers substance abuse treatment services, the program description shall address the timely and appropriate treatment of substance abusing pregnant women." Va. Admin. Code tit. 12, § 35-102-270.

The state Board of Mental Health, Mental Retardation and Substance Abuse Services is required to develop "regulations which ensure that programs licensed to provide substance abuse treatment develop policies and procedures which provide for timely and appropriate treatment for pregnant substance abusing women." Va. Code Ann. § 37.1-182.1

Each state liquor store must have posted a notice "warning persons that consumption of alcohol shortly before conception or during pregnancy may cause birth defects, including fetal alcohol syndrome and fetal alcohol effects." Wash. Rev. Code § 66.16.110.

Screening criteria are to be developed to identify "pregnant or lactating women addicted to drugs or alcohol who are at risk of producing a drug-affected baby." The Department of Health is required to train medical professionals to identify and screen such women. Wash. Rev. Code § 70.83E.020.

The Department of Health and Safety "shall contract with the University of Washington fetal alcohol syndrome clinic to provide fetal alcohol exposure screening and assessment services." The services include training in diagnosis, development of educational materials, establishment of diagnostic clinics state-wide, and preparation of an annual report detailing information relating to diagnostic accuracy and reliability. Wash. Rev. Code § 70.96A.500.

Finding that the use of alcohol and drugs during pregnancy may cause problems for women, children, and communities, the state legislature declared that:

the best way to prevent problems for chemically dependent pregnant women and their resulting children is to engage the women in alcohol or drug treatment. The legislature acknowledges that treatment professionals find pretreatment services to clients to be important in engaging women in alcohol or drug treatment. The legislature further recognizes that pretreatment services should be provided at locations where chemically dependent women are likely to be found, including public health clinics and domestic violence or homeless shelters.

The legislature called for the development of treatment programs able to serve pregnant women seeking treatment immediately "so that women who seek help are welcomed rather than ostracized." Wash. Rev. Code § 70.83C.005.

The state plans to conduct a study to "measure the reduction in the birth rate of drug-affected infants among women and shall compare the reduction with the rate of birth of drug-affected infants born to women referred to chemical dependency treatment programs. The study shall identify the factors that promote or discourage the ability of women to avoid giving birth to drug-affected infants." Wash. Rev. Code § 13.34.805. The study is to include alcohol-affected births as well. Id. § 13.34.8051.

Oversight Committees, Task Forces, Research—Identification, Testing, Reporting

The Department of Health is required to investigate whether to test or screen newborns for exposure to alcohol and drugs, taking into consideration cost and whether testing should be mandatory or targeted. Wash. Rev. Code § 70.83E.030.

The state Departments of Health and Social and Health Services is to develop a comprehensive plan to provide services to mothers who give birth to a drug or alcohol exposed infant and who constitute at-risk eligible persons under the law. In developing such a plan, the state is to "calculate potential long-term cost savings to the state resulting from reduced use of the medical, juvenile justice, public assistance, and dependency systems by children and mothers receiving services." Wash. Rev. Code § 13.34.803.

A model project is to be developed "to provide services to women who give birth to infants exposed to the nonprescription use of controlled substances or abuse of alcohol by the mother during pregnancy." Wash. Rev. Code § 13.34.800.

Under the Maternity Care Access Program, pregnant women who are substance abusers are considered "at-risk eligible persons." Also, "support services" are defined to include "alcohol and substance abuse treatment for pregnant women who are addicted or at risk of being addicted to alcohol or drugs." Wash. Rev. Code § 74.09.790.

"The department of social and health services, the department of health, the department of corrections, and the office of the superintendent of public instruction shall execute an interagency agreement to ensure the coordination of identification, prevention, and intervention programs for children who have fetal alcohol exposure, and for women who are at high risk of having children with fetal alcohol exposure." Wash. Rev. Code § 70.96A.510.

Treatment Improvement/Priority Treatment for Pregnant Women—Education and Awareness

The Division of Alcohol and Substance Abuse is to develop "pretreatment projects" for women of child bearing age and to ensure that such projects are available in public health departments; that staff are trained in domestic violence issues and in identifying substance-abusing pregnant women; and that there are programs to educate women and agency staff about the effects of alcohol and drugs on health, pregnancy, and unborn children. Program staff are required to make referrals and advocate for women to enter drug and alcohol treatment facilities. Wash. Rev. Code § 70.83C.020.

All licensed establishments selling alcohol "shall display signs provided by the alcohol beverage control commissioner warning of the possible danger of birth defects which may result from the consumption of alcohol during pregnancy." W. Va. Code § 60-6-25(a)

When used in referring to an unborn child, serious physical harm inflicted on the unborn child, and the risk of serious physical harm to the child when born, caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

The juvenile court has "exclusive jurisdiction over an unborn child alleged to be in need of protection or services." The statute empowers the court to order into custody a pregnant woman who

habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control. The court also has exclusive original jurisdiction over the expectant mother of an unborn child described in this section.

Wis. Stat. § 48.133; see also id. § 48.193 (procedures for taking a pregnant adult into custody); id. § 48.19(1)(cm) (procedures for taking a pregnant minor into custody); id. § 48.205(1m) (criteria for taking pregnant adult into custody); id. § 48.205(1)(d) (criteria for taking pregnant minor into custody); id. § 48.213(1)(b) (procedures for hearing for taking pregnant adult into custody); id. § 48.21(1)(b) (procedures for hearing for taking pregnant minor into custody).

The Department of Health and Family Services "shall acquire, without cost if possible, pamphlets that describe the causes and effects of fetal alcohol syndrome and the dangers to a fetus of the mother's use of cocaine or other drugs during pregnancy and shall distribute the pamphlets free of charge to each county clerk in sufficient quantities so that each county clerk may provide pamphlets to marriage license applicants under § 765.12(1)." Wis. Stat. § 46.03.

"With each marriage license the county clerk shall provide a pamphlet describing the causes and effects of fetal alcohol syndrome." Wis. Stat. § 765.12(1).

The Wisconsin legislature appropriated $87,500 for fiscal year 1997-98, and $175,000 for fiscal year 1998-99 "for a program to provide substance abuse day treatment services for pregnant and postpartum women and their infants." Wis. Stat. § 46.48.

The Department of Health and Family Services may "award not more than $125,000 in each fiscal year as grants to counties and private nonprofit entities for treatment for pregnant women and mothers with alcohol and other drug abuse treatment needs." Wis. Stat. § 46.86.

If a hospital employee, social worker, or intake worker suspects that an expectant mother has "controlled substances or controlled substance analogs" in the blood stream or that "there is a serious risk that there are controlled substances or controlled substance analogs" in the blood stream because of drug use during pregnancy and that the "unborn child . . . may be adversely affected by the controlled substances or controlled substance analogs," that person may refer the expectant mother to a physician for testing. However, no testing under this statute may take place "without first receiving [the expectant mother's] informed consent to the testing." Wis. Stat. § 146.0255(2).

In 1998 the Wisconsin State Legislature passed sweeping legislation amending its "Children’s Code" to include numerous provisions protecting the rights of the "unborn child." One of the purposes of the legislation is as follows:

To recognize that unborn children have certain basic needs which must be provided for, including the need to develop physically to their potential and the need to be free from physical harm due to the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. It is further recognized that, when an expectant mother of an unborn child suffers from a habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, in order to ensure that the needs of the unborn child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the unborn child for the expectant mother to be ordered to receive treatment, including inpatient treatment, for that habitual lack of self-control, consistent with any applicable law relating to the rights of the expectant mother.

Under the definitions in the Children's Code, "special treatment or care" is defined to include "professional services which need to be provided to the expectant mother or an unborn child to protect the physical health of the unborn child and of the child when born from the harmful effects resulting from the habitual lack of self-control of the expectant mother in the use of alcohol, controlled substances or controlled substance analogs, exhibited to a severe degree." Wis. Stat. § 48.02(17m).

A county department of community programs must, within the limits of available funds, "provide for the program needs of persons suffering from mental disabilities, including mental illness, developmental disabilities, alcoholism or drug abuse." If, though, funds are "insufficient to meet the needs of all eligible individuals, [the county department must] ensure that first priority for services is given to pregnant women who suffer from alcoholism or alcohol abuse or are drug dependent." Wis. Stat. § 51.42(3)4m.

In privately operated alcohol or drug abuse treatment facilities, "first priority for services . . . is for pregnant women who suffer from alcoholism, alcohol abuse or drug dependency." Wis. Stat. § 51.46

Prospective adoptive parents are to be provided with a medical history of a child subject to adoption which includes, among other things, "any drugs or medication taken during pregnancy by the child's natural mother and any other information which may be a factor influencing the child's present or future health." Wyo. Stat. § 1-22-116.

Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs - Year 2000 Overview. Part 4