Marijuana Use while pregnant - neglect? - CA

[Lad]

What is the name of your state? CA
In 2004 Texas made it a felony to smoke marijuana while pregnant, resulting in a prison sentence of 2-20 years...The only CA law I could find on point states (civil child welfare statute):
11165.13. For purposes of this article, a positive toxicology
screen at the time of the delivery of an infant is not in and of
itself a sufficient basis for reporting child abuse or neglect.
However, any indication of maternal substance abuse shall lead to an
assessment of the needs of the mother and child pursuant to Section
123605 of the Health and Safety Code. If other factors are present
that indicate risk to a child, then a report shall be made. However,
a report based on risk to a child which relates solely to the
inability of the parent to provide the child with regular care due to
the parent's substance abuse shall be made only to a county welfare
or probation department, and not to a law enforcement agency.

then
123605. (a) Each county shall establish protocols between county
health departments, county welfare departments, and all public and
private hospitals in the county, regarding the application and use of
an assessment of the needs of, and a referral for, a substance
exposed infant to a county welfare department pursuant to Section
11165.13 of the Penal Code.
(b) The assessment of the needs shall be performed by a health
practitioner, as defined in Section 11165.8 of the Penal Code, or a
medical social worker. The needs assessment shall be performed
before the infant is released from the hospital.
(c) The purpose of the assessment of the needs is to do all of the
following:
(1) Identify needed services for the mother, child, or family,
including, where applicable, services to assist the mother caring for
her child and services to assist maintaining children in their
homes.
(2) Determine the level of risk to the newborn upon release to the
home and the corresponding level of services and intervention, if
any, necessary to protect the newborn's health and safety, including
a referral to the county welfare department for child welfare
services.
(3) Gather data for information and planning purposes.

The internet data is all over the place on how (or if) smoking is harmful (the person uses tobacco also). No chance of them listening to me - not sure if this is a moral or legal dilemma - the law is so sketchy. I guess I could call CPS or maybe the pediatrician - I just want to remain anonymous. Any suggestions?

[rmet4nzkx]

This is not a debate forum. If you have a specific question, ask and provide some facts.

[Lad]

Not asking for debate - look at my title. "Is this neglect" according to the CA law I cited? Pretty clear. Maybe someone knows of some case law that would be helpful. I then listed the info I could find on reporting/testing to see if there was any discernable info in the rules I stated that cover CA hospitals - is it automatic, regional, discretionary? Is there any legal basis at all for testing? The law seems to be all over the place on fetal vs. women's privacy rights. I put moral vs. lewgal becasue the law seems to be in limbo. I didn't think I was writing to Dr. Laura or Oprah. I might have provided extraneous info because I am emotionally involved, and a new user, but as I said, the legal issues are there. If you have any helpful suggestions on methods of posting or constructive advice, I think it is best appropriately addressed to me via a private message - don't need the pillory. I just need legal help, not a pejorative scolding. For anyone else, please respond accordingly & thank you in advance.

[CdwJava]

Originally Posted by Lad

Not asking for debate - look at my title. "Is this neglect" according to the CA law I cited?

Sadly, no.

In general, most hospitals are forbidden to report the drug use or abuse of the mother without the permission of the mother. There are some exceptions, and the exceptions and "what if ..." queries can go on ad infinitum.

In the narrow circumstances you cite (pregnant mom smoking marijuana), this would not be a criminal act.

- Carl

[Lad]

Hi Carl,
Thanks for the polite, informative answer. I'll call CPS and see what they have to say - you were right about the privacy laws, the possible dual use of toxicology results for both medical and legal purposes also raises important questions about informed consent. Community standards vary for obtaining consent in cases involving prenatal substance abuse. Some medical facilities conduct toxicology testing under a general "conditions of admission" form that authorizes various medically indicated procedures. Other facilities require a special consent specifically authorizing toxicology testing. Other hospitals require that a patient be specifically informed of potential legal consequences before testing is conducted. I tried to call the hospital just to ask their policy, but they wouldn't tell me...A I agree, most civil laws are inadequate; they target postnatal child abuse and neglect, but fail to confront prenatal harm. I have read that in court cases prosecutions of pregnant women who abuse narcotics have not been successful because of the use in unlawful evidence and failure to prove the mother’s intent to harm the child.
BUT, in Texas, it'll get you a felony conviction for 2-20 ...interesting.
Thanks again

[weenor]

If you google for a while on the subject you will find several places discussing studies with regard to the affect of marijuana use on a fetus. It seems that the consensus for now, is that there is little or no effect on the unborn child. Although I do not necessarily agree (it would seem logical that pot use would be detrimental), there is nothing definitive in science- so it would be difficult to show neglect.

[Lad]

Believe me, I've Googled myself to death. I’ve found the usual sites with the info on harm to the fetus and the women's rights sites and pro-marijuana sites stating the opposite. Then, of course, there’s the tobacco usage…oh gosh. It's a difficult issue for two reasons - I believe I stated a post or so ago, the law is all over the place - in Texas or South Carolina, you’re screwed, here in CA, laissez-faire. Can’t even find out if any laws govern the hospitals in terms of routine testing. I think my legal questions are somewhat mixed with a moral dilemma that can't be addressed here, but I thank all the helpful people and their posts for the info.

[rmet4nzkx]

Originally Posted by Lad

Believe me, I've Googled myself to death. I’ve found the usual sites with the info on harm to the fetus and the women's rights sites and pro-marijuana sites stating the opposite. Then, of course, there’s the tobacco usage…oh gosh. It's a difficult issue for two reasons - I believe I stated a post or so ago, the law is all over the place - in Texas or South Carolina, you’re screwed, here in CA, laissez-faire. Can’t even find out if any laws govern the hospitals in terms of routine testing. I think my legal questions are somewhat mixed with a moral dilemma that can't be addressed here, but I thank all the helpful people and their posts for the info.

The biggest problem with pregnant women smoking MJ is the second hand smoke which is going to be less than a pregnant mother who smokes tobacco and the fact that one is legal and the other is illegal. In Fact it might help control nausea and aid in mom getting more nutrition from the MJ munchies.

Like I said this is not a debate forum. You still have not asked a question or provided any facts.

[Lad]

Originally Posted by rmet4nzkx

You still have not asked a question or provided any facts.

Question: In Title - Marijuana use while pregnant - neglect?
Notice the punctuation mark. That QUESTION alone was sufficient for a response. I cited statutes pertaining to the issue of neglect that seemed to say no. The statute seemed to leave room for interpretation.

FACTS: Pregnant, smoking marijuana. What else is needed.

In no way does my post ask for a debate.
Just end this thread .

[CdwJava]

Originally Posted by Lad

Question: In Title - Marijuana use while pregnant - neglect?
Notice the punctuation mark. That QUESTION alone was sufficient for a response. I cited statutes pertaining to the issue of neglect that seemed to say no. The statute seemed to leave room for interpretation.

FACTS: Pregnant, smoking marijuana. What else is needed.

In no way does my post ask for a debate.
Just end this thread .

And the answer remains the same - simply smoking marijuana while pregnant is not - in itself - a crime.

The police are not going to arrest a pregnant woman for any kind of neglect for smoking marijuana or any other drug while they are pregnant. Heck, mom could be doing IV drugs or smoking crank and they would still only face penalties for the drug use or possession - not the endangerment.

However, mom will likely lose the child to social services at birth - but that's another issue.

- Carl

[Ohiogal]

Look at :
Ferguson v. City of Charleston
No. 99-936 (2001)
532 U.S. 67 (2001)
Argued October 4, 2000
Decided March 21, 2001



United Supreme Court says hospitals cannot test women for drugs and then turn it over to the police for criminal charges unless the pregnant woman provides informed consent as to the purpose of the test and the fact that by taking it they will subject themselves to such. Read the opinion.

[CdwJava]

This has also resulted in the near-elimination of the tracking of "drug-babies" as even testing for statistical purposes (at least in CA) has largely gone the way of the dodo. Tracking the source and history of children born to drug-abusing mothers has been made very difficult ... resulting in what is likely to be a greatly ill-recorded (under or over-exaggerated due to wild guess estimates) guesstimate of the scope of the problem. We have found that areas that want to seek aid and resources (i.e. $$$) make a high estimate of the number of drug babies - others, who want to reduce the impact, lower the estimate - likely to only those they KNOW about (who gave consent).

However, it is my understanding that most prespective mothers sign these waivers in due course of their treatment. And, that when the child is born with an addicition or other problem caused by or exacerbated by the mother's abuse, the hospital CAN call CPS or other child service agencies in the interest of safety for the child. Our CPS is [far too frequently] occasionally responding to the neighboring county's hospital (ours has no birthing center) and seizing children born of drug mothers.

- Carl

[Ohiogal]

Originally Posted by CdwJava

This has also resulted in the near-elimination of the tracking of "drug-babies" as even testing for statistical purposes (at least in CA) has largely gone the way of the dodo. Tracking the source and history of children born to drug-abusing mothers has been made very difficult ... resulting in what is likely to be a greatly ill-recorded (under or over-exaggerated due to wild guess estimates) guesstimate of the scope of the problem. We have found that areas that want to seek aid and resources (i.e. $$$) make a high estimate of the number of drug babies - others, who want to reduce the impact, lower the estimate - likely to only those they KNOW about (who gave consent).

However, it is my understanding that most prespective mothers sign these waivers in due course of their treatment. And, that when the child is born with an addicition or other problem caused by or exacerbated by the mother's abuse, the hospital CAN call CPS or other child service agencies in the interest of safety for the child. Our CPS is [far too frequently] occasionally responding to the neighboring county's hospital (ours has no birthing center) and seizing children born of drug mothers.

- Carl

The difference is that in Ferguson it was only pregnant women and only applied to pregnant women. An argument can easily be made that when a child is born, their health is their own. It is not dependent on mom. If they test the baby and find out that it has been born addicted to a drug, they can call the police and CPS because the child has tested positive to drugs. Which is evidence that the child has been endangered. This evidence is separate and apart from mom.