In all of the cases, the judicial decision depended on the disposition of the question of whether, for the purpose of adjudicating the criminal charges, a fetus is a child. The balance in the courts in favor of treating substance use during pregnancy as a medical problem depends on the definition of a child for the purposes of criminal statutes.
Eighty-four percent of the cases in Flavin and Paltrow’s study involved an allegation that the pregnant woman had used an illegal drug. Paltrow says that in the ongoing process of updating her and Flavin’s report on pregnancy prosecution, she has observed a demographic shift.
Some policymakers and law enforcement officials argue that criminal punishment deters substance use among pregnant women. 1, –, 3 In contrast, the medical model of addiction views substance use disorders as chronic, relapsing diseases, with substance abuse during pregnancy an unfortunate, but common occurrence.
Although his office classifies these as drug cases, Fagundes uses language to describe stillbirth that threatens the “personhood-loophole.” “It’s appalling to me that, just because a fetus doesn’t have a voice and a young child has no voice, it doesn’t mean that they should be ignored,” he says.
The homicide case against a breastfeeding mom whose baby died after drugs were found in his system can move forward, a Pennsylvania judge has ruled. Samantha Jones, 30, has been charged with one count of criminal homicide after her 11-week-old son, R.J., died after being breastfed on April 2. Jones had been taking methadone, a drug she had been ...
According to a study on breastfeeding and methadone published in Breastfeeding Med in 2008, "concentrations of methadone in human milk are small, and the potential exposure to the infant is low and unlikely to have any negative effect on the developing child.".
Jones, who Busico said has one other child, had been using methadone with a prescription and told police as much, according to the affidavit. Methadone is prescribed to help people who are battling an addiction to narcotic-based painkillers. A woman breastfeeds a newborn baby in an undated stock photo.
One published trial court decision was identified. 24 In this case, a New York trial court in 1992 dismissed the charge of child endangerment for cocaine ingestion during pregnancy. The infant was born prematurely. The court held that the legislature did not intend for the relevant statute to apply to conduct during pregnancy that affected fetuses. The court also referred to rulings by appellate courts in other jurisdictions that had held similarly in comparable cases.
The substances related to the charges included cocaine, heroin, methamphetamine, marijuana, and prescription pills. Proceedings resulted in dismissal of the charges or convictions overturned for 86.2 percent of the women.
For example, Amanda Kimbrough's child was born prematurely and died shortly after birth, having tested positive for methamphetamine. She was charged with chemical endangerment of a child.
The court also pointed out that, after the Whitner decision, the legislature did not modify the statute to exclude viable fetuses from its definition of child.
The discourse about criminalization of substance use in pregnancy suggests that women are at serious risk of successful prosecution for illicit drug use during pregnancy. 8, 15 Based on our review of published judicial decisions, this does not appear to be the case in most jurisdictions. Women charged with or convicted of crimes against their child or fetus related to substance use during pregnancy have won on appeal much more often than they have lost. It is, however, not known how many women, if any, have been convicted at the trial court level and not had their case heard at the appellate level.
9 These may lead to termination of parental rights, but not to prison sentences. Tennessee is the only state that has enacted a law that targets substance use by pregnant women on the basis of presumed harm to the fetus or child.
An obvious example is the recent Tennessee law that explicitly made illicit drug use during pregnancy a form of criminal assault. In 2005, the Tennessee Court of Appeals overturned convictions based on guilty pleas for aggravated child abuse for methamphetamine use during pregnancy in two cases combined as Richards v.
Upon Blalock’s delivery, she informed her obstetrician about the prescription of hydrocodone, according to a letter from her lawyers to Lauderdale County authorities. Her newborn, located at North Alabama Medical Center, was tested for opiates—the test results yielded positive.
Kim Blalock, a 36-year-old stay-at-home mother of six, suffers from myriad medical issues: degenerative disc disease, arthritis, post-surgical complications and a car accident which occurred a year prior to her pregnancy.