Of Drugs and Death: Prosecutors Raise the Ante : Woman Accused of Contributing to Baby’s Demise During Pregnancy

In a case that is attracting widespread attention, an El Cajon woman has been charged with contributing to her infant son’s death by ignoring her doctor’s advice and taking illegal drugs during pregnancy.

Experts in reproductive law and advocates for the rights of unborn children say the prosecution of Pamela Rae Stewart, 27, is one of only a handful of cases nationally to test a pregnant mother’s legal obligations to the unborn fetus--and perhaps the only instance in which criminal charges have been filed.

Stewart wept quietly during a court appearance Tuesday in San Diego. She has pleaded not guilty to a charge of failing to provide proper medical care for her son, Thomas Travis Edward Monson, who was born with severe disabilities Nov. 23 and died Jan. 1.

Defense attorney Richard Boesen called the charges a “travesty.”

“Here you have a woman devastated by the loss of a small child,” he said. “She waited many years to have a male child, and her son was born disabled. She suffered the consequences of that mentally and emotionally. And now . . . months later, criminal charges are brought.”

El Cajon police began investigating Stewart’s conduct after the physician who delivered the baby notified the county’s Child Protective Service Division that he was born with traces of amphetamines in his blood, according to Lt. Randy Narramore.

Detectives learned that a physician had warned Stewart during her pregnancy that she was suffering from placenta previa, a condition in which the placenta is implanted in the lower end of the uterus, sometimes blocking the cervical opening. The doctor, Narramore said, told Stewart to stay off her feet, refrain from sexual intercourse, take no “street drugs” or narcotics and to seek medical care quickly if she experienced bleeding.

Prosecutors will attempt to prove that Stewart ignored that advice--continuing to use drugs and failing to swiftly seek medical attention--knowing she might cause harm to her baby.

“I believe the evidence will show she didn’t follow through on the medical advice she was given,” San Diego County Deputy Dist. Atty. Harry Elias said. “I think it resulted in the baby’s illness and ultimate death.”

Stewart insists she followed her doctor’s orders and repeatedly sought medical attention during her pregnancy, Boesen said.

Responsibility to Child

The charge was brought under a statute normally used to prosecute parents for failing to pay child support, according to Elias. Under that statute, parents have a legal responsibility to their child from the moment of conception, he said.

Police investigated the death as a possible murder, but Elias said the facts of the case better fit the requirements of the failure-to-care statute. Police decided not to bring any charges against Stewart’s husband, Thomas Monson.

The case appears to be a first for California courts, Elias said.

“We’re seeing if this kind of conduct is appropriately handled by way of a criminal prosecution,” he said. “It appears to me it is. The question really is for the courts to decide and maybe for the Legislature to decide.”

Boesen said the case has opened “a Pandora’s box” of troubling issues and warned that the precedents it could set would leave virtually all expectant parents at risk of prosecution if there were complications in their children’s birth.

Following Doctor’s Orders

“Is a woman going to be prosecuted every time she fails to follow the orders of a physician, and subsequently, post-birth, there’s a physical problem for the child?” Boesen asked.

Stewart was arrested last week when she failed to respond to a mailed notice to appear in court. A San Diego municipal judge Tuesday lowered Stewart’s bail from $10,000 to $2,500. Conviction on the misdemeanor neglect charge carries a maximum penalty of a year in county jail and a $2,000 fine.

Experts on issues of reproductive rights contacted Tuesday by The Times were aware of only a few comparable cases nationwide--and no criminal prosecutions.

Last month, state officials in Florida took temporary custody of the child of a Vero Beach cocaine addict. The child was born prematurely with a cocaine addiction and a defective bowel.

Weekly Urine Tests

In 1983, according to published reports, a Baltimore court ordered a pregnant woman to submit to weekly urinalyses during the last three months of her pregnancy after her physician sought a court order enjoining her from using illegal drugs.

A Michigan appellate court ruled in 1980 that when an infant is born suffering symptoms of narcotics withdrawal, the state can cite the parents for neglect and take temporary custody of the baby.

James Bopp Jr., general counsel for the National Right to Life Committee, an anti-abortion group, said Tuesday that each of the cases stood for the principle that unborn children are entitled to legal protection.

“Just as born children can be subject to abuse and neglect, so can unborn children,” Bopp said in a telephone interview from his office in Terre Haute, Ind. “They have a right to be protected from that.”

Not Really Unusual

Applauding the San Diego prosecution, Bopp said the case only seems unusual because the victim was unborn. “Obviously, if a born child had been intentionally injected with illegal drugs like this, you would fully expect action by the state,” he said.

John Robertson, a University of Texas law professor who has written about parents’ duties to unborn children, said he expects increasing litigation over maternal conduct in both civil and criminal courts--particularly as the consequences of maternal drug abuse are more commonly detected.

Robertson said Tuesday that he favors preserving a woman’s right to have an abortion. “But once she decides to go to term, she’s opting for a different set of obligations, which include the obligation not to harm the child who might be born through prenatal or postnatal conduct,” he said.

Hard Line to Draw

However, Alexander Morgan Capron, a USC law professor, warned that the line may be difficult to draw between criminal conduct and proper parenting.

“Amphetamine use, illegal drug use, would seem to be pretty far toward one end of the spectrum,” said Capron, who directed a presidential commission on ethical problems in medicine. “But what about the mother who smokes?” he asked. “What about the mother who works at a hard job and puts herself under a lot of stress? What about the mother who feeds her other children and doesn’t leave enough for herself?

“All of these can obviously have terrible consequences for the fetus. Are they all going to be the subject of actions by the district attorney?”