First of all, the growing social protection and multiple social and religious organizations attract public attention to this problem. Another reason is a growing number of women who use different kinds of drugs during pregnancy. Statistics show the tendency of drug use increase during pregnancy. “According to hospital surveys, approximately 11 percent of pregnant women use at least one of the following drugs: heroin, methadone, amphetamines, PCP, marijuana, and cocaine.” (Chasnoff, 1998)
It means that 11 percent of newborn children can have serious problems after birth. The numbers are threateningly high when we think about the future of our nation. “Infants of drug users may go through drug withdrawal or have other medical problems at birth. Withdrawal in a newborn is known as neonatal abstinence syndrome(NAS).(Chasnoff, 1998) Neonatal Abstinence Syndrome (NAS) can be expressed as the extreme sensitivity to noise, bad coordination, feeding problems, and tremors.
This is only the part of possible consequences fetal drug use can have on children. “Though the specific effects of illicit drugs on newborns are still under-researched, several studies have linked the use of illicit drugs (especially cocaine) to an increased risk of miscarriage, low birth weight, premature birth, growth retardation, small head circumference, congenital abnormalities, fetal distress and stillbirth, and behavioral problems in later years (Chasnoff, 1998).
Extending Child Abuse Protection to the Viable Fetus
There is no one opinion in treating pregnant women who use drugs yet. The extension of fetal rights shows the tendency to treat fetus like a child, and thus the use of drugs during pregnancy can be equaled to minor child abuse.
South Carolina became the center of the movement fighting for the fetal rights. Other states like Arizona and Ohio supported this initiative. In 1996 a woman was convicted because she used cocaine during the last trimester of her pregnancy (Coady). The case got the name, South Carolina v. Whitner. Despite the attempts of the defendants to prove that the “fetus” who suffered because of its mother’s behavior couldn’t have been qualified as a “child,“ the Supreme Court of the South Carolina confessed the woman guilty thus recognizing the unborn child like a valuable human (Coady).
This case created the precedent in court practice and reflected the new tendency in treating unborn children. Another very loud case called Ferguson v. Charleston, South Carolina shows the way healthcare system tried to fight drug abuse among pregnant women. The workers of the public hospital in South Carolina tested women on the drug use without their knowledge about that (Gostin, 2001). Positive for drugs results of the blood tests had been sent to the police. A lot of women were convicted of child abuse because of these tests. In 2001 the Supreme Court opened the case against the hospital for testing women without telling them about that. The Supreme Court stated that such a practice violated women’s rights. Checkups and tests contradicted the Fourth Amendment, which guaranteed protection against unreasonable searches. “These cases reflect an interesting intersection between the conservative War on Drugs and the conservative effort to restrict reproductive freedoms. With the former, punishment is preferred over treatment while with the latter, a fetus is thought to merit the same moral and legal status as a newborn.”(Gostin, 2001)
The harm drug use can cause to the unborn children is evident. It’s also evident that women who use drugs being pregnant should be confessed guiltily. The point is only to define the measure of responsibilities. New tendency of fetal right protection can lead to unexpected consequences. For example, in Crawley v. Catoe case the woman was accused of drug use because she used drugs during pregnancy. She was convicted of child endangerment despite the fact that the child was born healthy. So, the issue concerning the fetal rights is still doubtful, and there are a lot of things, which should be taken into account when creating new judicial norms. It’s important to distinguish the principles new norms should be based on.
The system is new and different flaws are possible. For example, in some states judges gave women, accused of drug use, the choice between imprisonment and Norplant. Taking control over the childbearing process can become a tool to limit rights and freedoms of women. When trying to protect the interests of unborn children, it’s worth to remember the benefits of their mothers.
Also, it’s necessary to remember that there are a lot of private healthcare institutions, which can give pregnant women necessary assistance without interfering with their private life. So, women who use drugs can simply go to private clinics where no blood tests detecting drugs are required. At the same time, other women who don’t use drugs will turn away from state healthcare institutions, and this will create danger they will not obtain all necessary prenatal care. Also, some specialists are afraid that strict control cal leads to the growing of late abortion rate.
So, not only social risks and criminal issues should be considered while taking a final decision about the fetal rights. Moral issues and ethical problems should also be considered. Too strict preventive measures can have an opposite effect and can increase the number of pregnant women who use drugs and will make their detecting harder. In addition, women who stay in fear during the pregnancy period can cause additional danger to her child. It’s easy to imagine the emotive state of the pregnant women threatened by jail of separation from her child.
What punishment is more effective
So, after recognizing the problem of fetal rights and fetal abuse the next step is to choose the way to treat this problem. Since the moral issue is doubtful and is difficult to distinguish it also becomes difficult to select the measures of responsibility of pregnant women who take drugs.
Between the 1980s and 1990s, the number of laws concerning drug-using pregnant women had been adopted in many states of the country. The thesis that fetus couldn’t be treated like the human was doubted and changes in the legislation quickly reflected such a shift in the attitude. Dozens of civil laws concerning fetal abuse had been enacted during this period. 17 states have adopted laws, which let to take children away from their mothers if their blood test was positive for drugs. It means that thousands of children had been taken away from their mothers during that time.
The South Carolina became the heart of the movement against the fetal abuse. The years of the fight for the fetal rights finally lead to the declaration of the Supreme Court of South Carolina about the criminal prosecution of pregnant women who took drugs. The declaration was signed in 1997 (Coady). The number of other states has signed similar documents since then. “Dozens of women have since been charged. One woman was sentenced to three years in prison for violating her probation by “abusing” her unborn child with cocaine, and another drew a five-year suspended sentence for smoking marijuana while pregnant. “ (Grabar, 1990)
Not all the influential social figures and medical authorities share the opinion that measures of prosecution are the main mean of fighting fertile abuse. There is a big group of opponents of pregnant women criminal prosecution. Those who stand against criminal prosecution don’t try to deprive the fetus of its rights. They only try to defend women’s rights and also call to look for more effective measures against fetal abuse. Daniel Kennedy, the founder of Fetal Rights Institute of Illinois, believes that “Fetuses are children but jailing moms for hurting their kids prenatally doesn’t help. It will only encourage women to seek abortions, or avoid treatment.” (American Academy of Pediatrics)
Opponents of prosecution also state that if taking into account only the possible harm to the health of the future child it’s necessary to prosecute for smoking cigarettes and drinking alcohol as it also causes considerable harm to the health of the fetus. This doesn’t happen though. Officials explain it by the fact that the law does not ban smoking and alcohol drinking and thus pregnant women who drink or smoke cannot be prosecuted. Judging from the possible harm to the fetus, drinking can also be regarded as abuse, it’s not reported to the police and isn’t criminally prosecuted, though. “After all, according to the most recent national survey of a pregnant woman, only a little over one percent used cocaine — while nearly 20 percent smoked cigarettes, which are linked to a range of infant health problems, including as many as 7,000 deaths every year. Not to mention alcohol, the leading cause of preventable mental retardation in babies. “ (American Academy of Pediatrics). Here we meet controversy, which is hard to overcome. The American Medical Association, the American Academy of Pediatrics and the number of other social organizations oppose criminal prosecutions of drug-addicted mothers.
Very often organizations, which stand for criminal prosecutions also stand against abortions. Specialists predict that if the movement for drug-addicted mothers prosecution continues to grow this will soon lead to the changes in the abortion rights. It’s quite a natural conclusion as if the fetus is treated like a human. Abortion can be regarded as a killing and thus should be criminally prosecuted.
Governmental regulations should include different measures of detecting and prosecution of drug abuse among pregnant women. The preventive measure can include different types of blood tests, which would help to detect possible cases of drug use among pregnant women. It’s an old truth that it’s easier to prevent evil than to cure it. I think that this saying is very true for the situation with fetal abuse. It’s necessary to take all possible preventive measures to decrease the level of fetal abuse. If we take into account moral considerations, we can not talk about the intentions harm women commit to their fetus. Women never or very seldom take drugs to cause an intentions harm to their future children. They use drugs because they have their problems and thus harm caused to the fetus can not be regarded as an intentional harm. So, they can not be accused same as those who harm intentionally. Also, different tests and check-ups without the agreement of the patients can reduce trust to the healthcare system in general, and they contradict the 4th Amendment. Such an attitude can change the attitude to the doctors in general as they will be regarded as those who punish instead of those who help people.
Fetal abuse is a severe problem modern society can not neglect anymore. The growing rate of women who use drugs, nicotine, and alcohol during their pregnancies makes this problem a burning issue. The question should be solved. Changes in legislation and the number of court cases have created the tendency of criminal prosecution of women who use drugs while being pregnant. The South Carolina became the center of the movement for the fetal rights. There are a lot of opponents and proponents of such methods.
Statistics show that legal prosecution cannot always be the best solution as in the most cases women, who use drugs do not have in their minds to cause intentional harm to their unborn children and need rather help than punishment. Specialized medical centers and different programs aiming to help women to overcome harmful habits could be an excellent alternative to rigid methods, such as criminal prosecution.
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