Prosecution of Drug Abuse During Pregnancy

Kirsten Scharnberg, a Tribune National correspondent reported, "Tayshea Aiwohi is charged with consuming such huge amounts of crystal meth while she was pregnant that her son died of methamphetamine poisoning two days after his birth" (Scharnberg, 2003). Cases such as this are appearing much more often in the spotlight recently. Prosecution against pregnant drug addicts has escalated greatly in recent years in a hope to protect the unborn fetus the women are carrying. Women who drink during pregnancy risk delivering a child with fetal alcohol syndrome, as well as mental retardation. Drug abuse exponentially increases the risk of miscarriage as well as much physical and mental impairment in the fetus.

The issue at hand is if the state should be able to interfere with and punish drug-addicted women for exposing their unborn children to dangerous substances. I feel that state agencies should be able to hospitalize pregnant addicts until they give birth. Once born, the child needs to be taken into state custody and the mother must enter a treatment program. On her successful completion, she would receive custody of her child. If she failed to comply with or complete the treatment program, her child would remain in the custody of the state. If harm was done to the child, the mother should be charged with the appropriate and sentenced accordingly. Throughout this paper, I will address the topic of drug addicts who continue to abuse these substances during their pregnancy. First, I will explain all assumptions being made in my argument and state the argument I support. Following the explanation of the assumptions, I will consider possible objections to my argument and offer a response to them.

Before stating the argument for my stance, I would like to clarify the assumptions I will be making when considering the issue. In this argument, I assume that the women being considered are competent adults and that there is no underlying health concerns with the mother or child, besides the substance abuse. The concern of what is competent will be addressed later in the paper.

I begin my argument with the idea that it is a woman's responsibility to care for herself and her unborn child during pregnancy. Not only is abusing drugs during pregnancy careless and irresponsible, but it is risking two lives - the mother's and child's. It is the woman's choice to do what she pleases before pregnancy. If she wants to abuse drugs, it is hurting herself, but when another life is affected, intervention is necessary. When a mother of a five-year-old girl is addicted to crystal meth, the child is taken away from her mother and put into another's custody while the mother receives treatment. I feel the procedure should be no different for an unborn child. Secondly, these women are already breaking the United States federal law by abusing these illegal drugs in the first place. If these women were convicted of drug charges, their children would be taken away - or if pregnant at the time, the woman would be put in jail, where she would be unable to abuse drugs.

In the case of Carmen Jones, the "deeply self-destructive woman," the state should do something to intervene in her harmful behavior. If she is successful in aborting her child by drinking so much alcohol, she should be punished. I feel that in this case, she should be charged with manslaughter with the intent to kill. Her reasoning for drinking so much alcohol was in hopes of killing her unborn and unwanted child. If actions were taken to prevent harm to the child, a couple which was unable to have children could have adopted it and turned the obviously negative situation around.

The first objection to my argument would be what is considered a competent adult and who is to make that distinction. As I said in my previous paper, competency should be determined on a case-by-case basis. If the law laid out so-called competency guidelines, some would be considered competent falsely and vice versa. There is an obvious gray area, which only someone who had interacted with the individual would be able to differentiate.

Another major objection to my argument on prosecuting these women is that the fetus does not have the rights of a born child. This issue arose in the case of Cornelia Whitner, who appealed her sentence to eight years in prison for child neglect. Whitner claimed that the South Carolina child neglect statute did not include fetuses, but only living children. The South Carolina Supreme Court declined the appeal claiming that the word "child" in the statute also included the protection of viable, unborn fetuses. In my opinion, a fetus has the rights of a living being once it is considered viable. Viability is the ability for the fetus to be capable of living outside of the mother's uterus. Once the fetus is no longer in need of their mother to survive, their rights need to be considered along with the rights of the mother. Another similar case was of Regina McKnight, who was convicted of homicide in 2000 for delivering a stillborn child after abusing crack throughout her pregnancy. The Whitner precedent permitted her conviction and she is now serving twelve years in prison for her actions.

The last major objection is that of Alexander Capron. Capron felt that if monitoring of pregnant women was to take place, and prosecution of those using drugs was executed then many women would avoid medical care during their pregnancy all together. He also felt that many would refuse to take tests or would even get late term abortions to save themselves from jail time. I do agree with Capron that monitoring would have to be done in a way that would help prevent these reactions from women. Just because some may shy away from health care, does not mean that the law does not have an obligation to attempt to save unborn fetuses that are being harmed and punish the mother's for the actions. If anything, I feel that other mother's will learn from example and withdraw from reckless behavior or abstain from unprotected sex if they do not wish to have an unwanted pregnancy result in a need to change their ways of life.

As you can see, pregnant women who abuse drugs during pregnancy need to be stopped and punished for their actions. Not only are they risking their own health, but that of their unborn child as well. Since the child has no way to object to its mother's behavior, the state is in the position to act in the best interest of the child and intervene. The best course of action to save the child is to hospitalize the mother until she gives birth. Once born, the child is taken into state authority's custody, while the mother enters a drug treatment program. If successful in treatment, the mother will receive custody of her child and, hopefully, a new lifestyle.