Should authorities invoke civil or criminal child maltreatment statutes against women who abuse alcohol or illicit drugs during pregnancy
and deliver babies with positive toxicologies? Potential exposure to alcohol or specified controlled substances may be evidenced by medical documentation of signs and symptoms consistent with this exposure in the child at birth or by results of a confirmed toxicological test for controlled substances performed at birth on the mother or the child. See, e.g., Am. Acad. of Pediatrics, Comm. on Substance Abuse, 1994 to 1995, Drug‑Exposed Infants, 96 Pediatrics 364 (1995), available at:
http://pediatrics.aappublications.org/cgi/reprint/96/2/364.pdf
Throughout the nation, prosecutions under endangerment and criminal abuse statutes have generally failed because courts have held that a fetus is not a “child” within the meaning of these statutes or that prosecution for prenatal substance abuse was otherwise outside legislative intent. See, e.g.:
State ex rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729, 733–40 (Wis. 1997) State v. Gray 584 N.E.2d 710, 711 (Ohio 1992) Commonwealth v. Welch 864 S.W.2d 280, 282–84 (Ky. 1993) State v. Martinez 137 P.3d 1195, 1196 (N.M. App. 2006)But see Whitner v. State, 492 S.E.2d 777, 779–84 (S.C. 1997) (criminal child neglect statute reached a pregnant defendant’s use of crack cocaine after the fetus was viable). Prosecutions have also failed under statutes proscribing distribution or delivery of drugs to a child. See, e.g., State v. Luster, 419 S.E.2d 32, 34–35 (Ga. App. 1992). Courts have also rebuffed prosecutions grounded in the theory that the mother passed the drugs not to the fetus but to the child during...
