Prenatal Treatment and Mothers’ Rights: The Legal Framework, Policy Considerations, and Research Needs in Three Problem Areas

Reciprocal Obligations: Managing Policy Responses to Prenatal Substance Exposure

“…The third shortcoming is that the states' public policies typically vary by type of substance, licit versus illicit, with the use of licit substances only seldom penalized. This distinction between licit and illicit drugs is illogical if the concern is the health of the mother, fetus, and subsequent child (Garcia 1997; Taub 1994). Even though this distinction permeates the current policymaking environment, we contend that future policies should be based on the expected harm to the fetus, not on the type of substance.…”

“…Since the substance use is often detected only because of the woman's pregnant status and her subsequent involvement in the health care system, punishing her for seeking health care would seem to undermine efforts at detection and intervention. Scholars also have identified the potential race and class inequities endemic to a criminal justice approach that focuses on the use of illicit substances, rather than a public health policy that focuses on prevention and treatment (Taub 1994). Finally, recent research suggests that drug treatment for nonviolent substance‐use offenders is a much more cost‐effective approach than incarceration is (CASA 2003).…”

“…Most of the articles dealing with PSE and related concerns fail to address the role of fathers and other involved men. Instead, they place all blame for prenatal injury and all social and legal responsibility for finding a solution on the pregnant woman (Garcia 1997; Taub 1994). But the complex roles that men play as “present or absent fathers, lovers, spouse batterers, enablers and co‐participants in drug abuse” must be factored into policy if robust and durable solutions to PSE are to be found (Garcia 1997, 108).…”

“…Criminal prosecution is never appropriate for PSE because the state's criminal justice system cannot be assumed to adequately protect the fetus or to achieve the state's legitimate social goals (see, e.g., Chavkin 1991a, 1991b; Taub 1994). Incarceration does nothing to improve the pregnant woman's parenting skills, to increase understanding of her own or her infant's health and nutrition needs, or to promote maternal‐infant bonding (unless the baby accompanies the mother to prison, which presents its own dilemma).…”