Fetal Abuse and American Law

In response to the crack-cocaine epidemic of the late 1980’s, prosecutors throughout the United States began charging women who consumed cocaine during their pregnancies with crimes such as delivering drugs to a minor and child endangerment. [1] As time has passed, these prosecutions have continued to occur at an ever-increasing pace. [2] Women are now receiving twenty-year prison sentences and being charged with crimes child abuse to murder. [3] In modern times, such prosecutions are unique to the United States alone, where women are committed and prosecuted based on their actions while pregnant. [4]

This drive to protect the fetus from harm, and giving the fetus the same protections as living and breathing human beings is in direct conflict with the American understanding of tort law and the American history of abortion law. One might also find conflict between this desire to protect the unborn and the American political refusal to provide guaranteed healthcare, effective education, and necessary social supports to those in need. Further out of line with American law is the direct discriminatory effect of such prosecutions, as the overwhelming majority of women prosecuted are women of color and women in poverty. [5]

Five percent of all American women consume illegal drugs during their pregnancy, and twenty-five percent of all American women consume alcohol during their pregnancy. [6] These statistics mean that approximately 375,000 babies are born each year with prenatal exposure to drugs. [7] Of those, 6,500 babies are born with full-blown Fetal Alcohol Syndrome; with 40,000 more are born suffering from some form of alcohol-related birth defect. [8] And, although drug and alcohol use know no societal boundaries, black women and women in poverty are more than ten times more likely to have their drug and alcohol consumption reported.

[9] II. Consumption of Controlled Substances During Pregnancy a. Alcohol and Fetal Alcohol Syndrome It has been known since the 1970’s that a causal connection exists between maternal alcohol consumption, fetal harm, and mental retardation. [10] Due to the symbiotic relationship shared between a mother and her unborn child, alcohol passes from the mother’s bloodstream into the bloodstream of the fetus. [11] However, the alcohol that passes to the fetus is not efficiently metabolized and so continues to wreak havoc on the fetal system long after the mother’s system has recovered.

[12] Even infants who were born to mothers who drank alcohol only moderately during the pregnancy are likely to suffer from a lower IQ and difficulties in both attention and learning. [13] Fetal Alcohol Syndrome is caused by a mother’s consumption of alcohol while pregnant and results in disturbances of physical growth, mental activity, and physical control for the child. [14] Any amount of alcohol consumption can result in fetal alcohol syndrome or alcohol-related birth defects, and no “safe” amount of alcohol consumption has been established.

[15] However, the larger the amount and frequency of alcohol consumption, the greater the risk of such birth defects becomes. [16] Alcohol consumption during pregnancy can also result in miscarriage, stillbirth, or premature delivery. [17] The most common neurological and developmental symptoms of fetal alcohol syndrome include poor physical growth, decreased muscle tone, poor coordination, delayed cognitive development, delayed social skills, difficulty with motor skills and control, speech impairments, and heart defects.

[18] Fetal Alcohol Syndrome also has multiple facial indicators, such as small eyes, narrow eyes, large epicanthal folds, small head size, small upper jaw, thin upper lip, indistinct philtrum, and a flat midface. [19] Fetal Alcohol Syndrome can be detected by an ultrasound in severe cases. [20] Other diagnostic options include a blood draw to test the blood alcohol level of the mother, brain imaging scans of the child, and physical examination of the child. [21]

The prognosis of children who are born suffering from Fetal Alcohol Syndrome is variable. Almost none of the children will have normal brain development, and most will require educational and behavioral tools to fit their unique needs. [22] Some infants will die from alcohol withdrawal, most will suffer some degree of mental retardation, many will be born with behavioral problems and impulse control issues, and some will go through life with abnormally formed heart structures. [23] b. Illegal Drug Use and its Consequences

There is some argument within the scientific and medical community concerning the use of illegal drugs during pregnancy. Some studies have shown long-lasting effects of maternal drug use,[24] while other studies have shown that children who were exposed to illegal drugs while in the maternal womb “catch up” to the development of their peers by kindergarten. [25] Marijuana is the most frequently used drug among childbearing-aged women in the United States,[26] and studies suggest that marijuana use results in slowed fetal growth and decreased length of pregnancy.

[27] After birth, newborns exposed to chronic marijuana use may suffer from withdrawal symptoms such as trembling and crying, have difficulty with state regulation, are over-sensitive to stimulation, and suffer from poor sleep patterns. [28] Some studies show no long-term effects on babies who were exposed to marijuana,[29] while other studies show continued difficulty in ability to pay attention. [30] Heroin usage during pregnancy increases the risk of pregnancy complications such as fetal growth, premature breakage of the water-bag membranes, premature birth, and stillbirth.

[31] Upon birth, complications such as low birthweight, breathing problems, sudden infant death syndrome, hepatitis C infection, and physical disabilities are common. [32] Most heroin-exposed newborns will suffer withdrawal symptoms for up to one-week after birth, including seizures, trembling, irritability, vomiting, and fever. [33] Many of the physical disabilities suffered by babies who were exposed to heroin in the maternal womb will continue throughout their life, and there is an increased likelihood that the child will suffer from long-term behavioral and learning problems.

[34] It is also important, however, that a pregnant woman who has been using heroin does not cease using heroin unless she is under the supervision and care of a physician, as the sudden stoppage of the drug is likely to result in fetal death. [35] Cocaine-exposed babies are more likely to be born prematurely, suffer from low birthweight, have smaller-than-normal heads, and be at increased risk of infection. [36] A higher incidence of cerebral palsy and mental retardation also occurs in cocaine-exposed babies, possibly from an increased likelihood of placental abruption (which results in decreased blood and oxygen supply) and fetal stroke.

[37] Infants exposed to cocaine in utero are likely to be jittery, over-sensitive to stimuli, irritable, and emotionally unresponsive. [38] Most children who were exposed to cocaine in the maternal womb will have normal intelligence by kindergarten age, although they may continue to suffer some learning and behavioral difficulties, especially in language and attention. [39] However, a good home life shows a strong tendency to reduce these effects.