Is anyone out there familiar with a case where the State has charged a mother with injury or endangerment based on her use of drugs at the time she is breastfeeding her infant? I have not found any published cases where this theory has been tried, but I don't see why it couldn't be tried, so long as the medical evidence is there to link the drug use to injury or endangerment.

Better check PC Sec. 22.12(1) first. If you can get past that, see these discussions for more on this hot-potato topic:

"Prosecuting Mothers"

"Meth Baby - Prosecution of Mother"

"Mom Causes Death of Child"

"Endangering a Child (pregnant mother)"

22.12 deals with an unborn child.

Here's Alabama's interesting approach to this recurring problem.

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http://www.al.com/printer/printer.ssf?/base/news/120298055632310.xml&coll=2

Law puts some new mothers in jail


Thursday, February 14, 2008
DAVE PARKS
Birmingham News staff writer


Shekelia T. Ward gave birth Jan. 8 at Andalusia Regional Hospital, and the next day she was arrested, jailed and charged with chemical endangerment of a child, a felony.

The reason: Ward and her newborn both tested positive for cocaine, and the hospital reported the information to authorities as evidence of possible child abuse.

Ward's experience is the product of a new law that has some prosecutors, particularly in southeast Alabama, arresting new mothers who test positive for illicit drugs. The prosecutors began filing these charges after the state Legislature in 2006 made it illegal to "chemically endanger" a child.

The new law and how it is being applied is raising a multitude of legal, ethical and medical issues.

Gregory L. Gambril, prosecuting attorney for Covington County, said his office has charged about 10 new mothers with chemical endangerment of a child since the law was passed. Two of the cases involved deaths of newborns caused by methamphetamine abuse, he said.

Gambril said children need protection, and the new law is there to do that.

"The unborn children are not making the choice," he said. "It's the mothers who are making the choice to do it to them."

But he acknowledged the law has some problems and needs clarification. It was originally proposed to prosecute parents who exposed children to toxins associated with methamphetamine production, and has no mention of pregnant women or their babies.

"It's obviously a close call under the law," Gambril said. "We would like the matter cleared up with a statute."

Gambril said his prosecutors are focusing on pregnant women who are addicted to methamphetamine, but other drug exposures are being decided case by case. It's all being done properly, he said.

"We do it hand in hand with pediatricians here, the OB-GYNs here, with the doctors," Gambril said. "Everybody seems to be consistently on board."

He said cases are settled when mothers agree to go into treatment.

"We are doing this for the sole purpose of trying to make sure both the mother and the child have a healthy pregnancy," he said. "We're not trying to throw these women in jail. That's absolutely not the goal of it."

Big bond:

Still, 28-year-old Ward remained in jail this week. Her bond was set at $250,000.

"For whatever reason, Covington County is notorious for having high bonds," said Corey Daniel Bryan, a public defender representing Ward. "With this law being fairly new, the judges have taken a hard stance."

Bryan said Ward's newborn is in the custody of a grandparent. "The baby's health is fine," he said.

He said the chemical endangerment statute is badly flawed, though the intent of the law was good - get children away from methamphetamine production. "Of course, what always happens with these type things is the Legislature writes a general, vague law, and the district attorneys grab hold of it and start charging everybody with it."

These prosecutions are based upon the premise that a fetus is a person, something that runs contrary to federal court rulings. "That is going to have to be taken up at some point," Bryan said. "It's just a matter of it getting to the higher courts."

Other lawyers raise the issue of the practicality of courts micromanaging a woman's pregnancy, and whether doing so is in the best interest of the baby.

In Dale County, prosecutors last year charged a new mother from Daleville, Sheila Denean Cox, with chemical endangerment after a hospital reported that she and her newborn tested positive for marijuana.

Donna Coon Crooks, a Daleville defense attorney for Cox, said that was taking chemical endangerment too far, and that the law casts such a wide net that it is impossible for a reasonable person to know whether he or she has violated it. The charges were reduced to a misdemeanor, Crooks said.

Studies have found that as many as 10 percent of pregnant women test positive for some illicit drug, and that's not counting those who drink alcohol or smoke cigarettes - behaviors that clearly put fetuses at risk.

In fact, an Arkansas legislator in 2006 suggested a law making it illegal for a pregnant woman to smoke. Then-Gov. Mike Huckabee, who is running for president, said such a law made sense from a health standpoint.

Enough already, Crooks said.

"If we allow the courts to jump in and regulate every aspect of our lives, we're opening up a whole new can of worms," she said. "I think the intentions are good, but my gosh, the prisons are full now. Are we going to put every pregnant mother in?"

She said health care workers, child welfare officials and prosecutors ought to consider whether a baby was seriously harmed by a chemical exposure.

"If they see something that's wrong with the child, I can see their interest in testing the child to see what's what," she said. "But as long as the child seems normal, I don't know what business it is of theirs."

High court rules:

The new law also raises questions about patient privacy, unreasonable searches and the relationship between law enforcement officials and health care providers.

In 2004, the U.S. Supreme Court ruled in a 6-3 decision that a Charleston, S.C., hospital had violated the rights of new mothers by testing them for illicit drugs and turning the information over to prosecutors. Thus, the hospital and staff members left themselves open to lawsuits, the court ruled.

In its decision, the court noted that there was a near consensus in the medical community that these types of programs were potentially harmful to children because fear of prosecution could prevent pregnant, drug-addicted women from seeking prenatal care.

The Supreme Court said hospital workers have a duty to report possible child abuse, but they can go too far by becoming extensions of law enforcement, even if it is being done to coerce women into drug treatment.

"The court reasoned that, when physicians are acting at the behest of the state to collect evidence, they have a special obligation to inform their patients of their constitutional rights," according to an analysis of the case published in the January issue of Virtual Mentor, American Medical Association Journal of Ethics. "The court acknowledged that the invasion of patient privacy in this case was severe due to the deceit involved in the testing and the unauthorized dissemination of confidential medical information to the third party."

Hospitals must carefully craft drug testing and treatment policies that are constitutionally and ethically sound, the article said.

Amy Dugger, a nurse practitioner at Andalusia Regional Hospital, said there was no written policy at the hospital on drug testing new mothers. "Whatever our policy is, it's in conjunction with Alabama state law," she said.

She said hospital officials were bound by Department of Human Resources guidelines requiring the reporting of possible child abuse, and that new mothers testing positive for illicit drugs fell into that category.

"We just work with DHR," she said. "We don't call law enforcement. DHR does that."

But no matter what the reporting requirements, she said the welfare of the mother and baby come first. "Our DA is very aggressive with this, and I commend him for that."

MONDAY, JUNE 26, 2006

Jury Deadlocked in Breast Milk Meth Poisoning Trial (California)

CORONA, Calif. � A judge declared a mistrial Thursday after jurors deadlocked in the case of a woman accused of killing her baby by nursing with methamphetamine-laced breast milk.

The jury stalemated 6-6 in the murder case against Amy Leanne Prien, said Ingrid Wyatt, spokeswoman for the Riverside County district attorney's office.

Prien, who is currently serving a 10-year sentence for felony child endangerment, would have faced 15 years to life if she had been convicted. The jury got the case June 15 after a 2 1/2-month trial.

The district attorney's office has until July 11 to decide on retrying the case, which began when Prien was arrested in January 2002 and was charged with murdering 3-month-old Jacob Wesley Smith.

Prien was convicted of second-degree murder in 2003, but an appeals court overturned the conviction in September, citing flawed jury instructions from the trial judge.

The prosecution was believed to be the first of its kind in California.

Mother Gets 6 Years for Drugs in Breast Milk

Published: October 28, 1992
In a case that appears to broaden the prosecution of women who pass drugs to their infants through their bodies, a woman was sentenced here Monday to six years in prison because her breast milk, tainted with methamphetamine, had killed her baby daughter.

In recent years, 160 women in 24 states have been charged with delivering drugs to their babies either during pregnancy or, through the umbilical cord, immediately after childbirth. But the case here in this town 40 miles southeast of Los Angeles is apparently the first in the nation based on the passing of drugs through breast milk.

The case dates from Aug. 7, when the baby, Hannah Gillespie, 24 days old, was found dead in the apartment of her mother, Alicia. The office of the Riverside County coroner determined that the child had died of mother's milk tainted with the methamphetamine, a stimulant, which the authorities said Ms. Gillespie had obtained illegally and used regularly.

On Monday, the 23-year-old Ms. Gillespie appeared in Riverside County Superior Court, pleaded guilty to three counts of child endangerment and was then sentenced to the prison term by Judge J. Thompson Hanks. Two of the three counts concerned endangerment to Ms. Gillespie's two other children, boys aged 2 and 5, both of whom have now been placed in foster homes.

A deputy public defender, Karen Hasler, explained the guilty pleas to the endangerment charges by saying Ms. Gillespie might otherwise have faced the possibility of being charged with second-degree murder, conviction of which carries a prison sentence of 15 years to life. "It wasn't likely," Ms. Hasler said, "but it was very possible. And in reviewing the case, we didn't want to take any chances like that."

Alison Marshall, a Washington-based lawyer for the National Association for Perinatal Addiction Research and Education, called the case "unique" and said she feared that the precedent would encourage prosecution of other nursing mothers who use drugs.

"What they need," said Pat O'Keefe, a spokeswoman at the association's headquarters in Chicago, "is more drug treatment programs that will accept pregnant women."

Lynn Paltrow, litigation director for the Center for Reproductive Law and Policy, said there were important legal differences between the earlier cases, against pregnant women, and the new California case, involving the passing of drugs after birth.

When a fetus is in the body of an addicted woman, "there is nothing she can do to avoid potential effects on the fetus," Ms. Paltrow said. "But once the baby is outside, her actions do not have to have an impact on the baby. She could choose bottle milk instead of breast milk.

"Still, there is the same basic question, as a matter of public policy, whether you want to treat this primarily as a criminal matter or as a health problem."

If drug addiction is really a disease then it how about charging any infected mother with endagerment for potentially passing the disease to her newborn child.

Don't forget to allege that breast milk is a deadly weapon under these circumstances.

I read about the case and that made me become convinced that young drug addict girls should be forced by law to have contraception measures. I know it sounds harsh but that baby payed the price for his mother's drug use, is that fair for him? If she had had a drug rehabilitation before getting pregnant thinks would have been different for that child.