Involuntary Drug Testing of New Mothers Gives Birth to Legal Debate
Thirty-year-old Cindy Jones readily admits having smoked a marijuana joint two days before she gave birth on April 4 to her fifth child, Cora Chasity Genelle Valdez.
But the Vista woman swears she hasn’t touched crystal methamphetamine for four years, and hasn’t snorted a line of cocaine since the second month of her pregnancy.
Her claim notwithstanding, blood tests at Tri-City Medical Center in Oceanside--done without Jones’ knowledge after she gave birth--showed cocaine and methamphetamine in her, and cocaine in her newborn daughter’s system.
Put in Foster Home
As required by law, hospital officials notified the Child Protective Services Division of the county Department of Social Services, who in turn put Cora Chasity in a Poway foster home until Jones can prove through subsequent testing over a week’s time that she is clean and is capable of raising her child in the proper environment.
Jones, who lives in a Vista hotel where she works as a maid, is angry, both for having temporarily lost her baby and for having been tested for drugs without her permission.
“The day I get my baby back in my hands, I’m going to file suit. I don’t know of any law in the United States that allows them to take blood from a woman for what they said was a routine test and then to test it for drugs,” Jones said.
“But I won’t sue them for money. I want to force them to open up a free prenatal clinic, and to name it after my daughter.”
Indeed, there is a continuing legal debate over whether pregnant women or new mothers should be tested, without their knowledge or consent, for drugs--a practice at several San Diego County hospitals--from Oceanside to Escondido to San Diego to La Mesa.
But both sides of the debate agree that the problem might best be resolved if women in San Diego County had greater access to free clinics for prenatal medical attention.
Cindy Zook, a Child Protective Services supervising social worker, said doctors from throughout the county refer to her office about 700 babies a year--out of more than 40,000 births in the county annually--who are born under the influence of a narcotic or are at risk of being addicted at birth. These are babies who may need the legal protection of the county for their own health’s sake.
In most cases, those babies received little or no prenatal attention and were delivered by physicians who had little or no medical history of the mother--including whether she might have used drugs that infiltrated the fetuses.
Doctors say that, with advance notice of drug use by the mother--preferably during prenatal checkups but, at the least at delivery--they can better prepare to treat the child immediately for drugs.
As required by state law, tests are routinely conducted to determine a mother’s and baby’s blood type, and to screen for syphilis. Most hospitals also screen for the presence of drugs, but not always with the mother’s knowledge.
If the toxicology screening shows drugs, the law provides for the baby to be placed on hold at the hospital rather than be released to the mother, and for Child Protective Services to be notified. CPS then may place the baby in a foster home or with a relative until the mother can prove to a Juvenile Court judge, usually after drug counseling, parenting classes and drug testing, that she is fit to raise the child.
In the extreme, a judge can order the baby put up for adoption.
The American Civil Liberties Union says it has a problem with the unannounced tests.
“From the legal perspective, the testing of women without their knowledge ignores the doctrine of informed consent,” said Judith Rosen, who does work on behalf of the ACLU. “While the woman has agreed the doctor can perform certain medical procedures on her, she hasn’t agreed that a urinalysis can be performed and have the results used against her in order to have the baby taken away, or to face possible prosecution in court.”
Rosen was one of the attorneys representing Pamela Rae Stewart, the El Cajon woman who, 14 months ago, was jailed but then acquitted on charges she contributed to her infant son’s death by ignoring a doctor’s orders during her pregnancy. Her son died 10 months after birth because of severe disabilities allegedly caused by drug use.
Rosen said she also fears that, if hospitals are known to test women for drugs, it might deter drug users from seeking proper medical care for themselves and their unborn children for fear of losing the child or being prosecuted.
Rather than identify the woman as a drug user at the time of delivery, more attention should be paid to treating the woman for her drug use during pregnancy, Rosen contends.
“I have no objection to testing the mother and baby to determine their medical needs, if the woman is informed of that,” Rosen said. “But what’s happening now is, the tests are being used to punish the woman for what she’s done by trying to take her baby away from her.”
Rosen has a partial ally in Dr. Suzanne Dixon, associate professor of pediatrics at the UC San Diego Medical Center, director of its newborn nursery, and an acknowledged authority on the effect of drug use on newborns.
Although Dixon insists that drug testing at the UCSD Medical Center is in no way prompted by a desire to “punish” the mother, she agrees that the problem is best addressed by better prenatal care for those who cannot afford private medical attention.
“We’re wasting time, energy and money making this a legal, courtroom battle. Babies are being born every day without proper prenatal care when the mother’s medical problems could easily be met,” she said. “This shouldn’t be an adversarial situation pitting mother against child.”
UCSD’s policy is to notify a mother when she is admitted that she will be screened for drugs if there is any indication of a history of drug use, or if the woman has received no prenatal care.
But Dixon acknowledges that, given the number of women who arrive at UCSD’s emergency room in labor, there isn’t always time in the rush of attending to her to notify her that the tests will be done either immediately or as soon after the delivery as possible.
“We have close to 400 deliveries a month, and 25% of them are with women who have had no prenatal care. And we’ve already established that there’s a high incidence of that medical problem (drug use) in that population.”
She and other doctors defend drug testing as necessary both for the mother’s and child’s sake, for a variety of reasons including the need by the anesthesiologist to know whether any drugs he may give the woman during labor might conflict with drugs in her system.
Moreover, the medical concern is that the child be treated immediately for drug withdrawal, and to help the mother seek help in weaning herself off the drug, doctors say.
“Chemical dependency is a medical disease that has consequences for both the mother and child,” Dixon said. “It shouldn’t be an adversarial question. It shouldn’t be the infant and the mother having to debate over individual rights. That makes me furious. And it concerns me that hospitals might be perceived as the enemy of the people, driving them away from good medical care because they fear what we might do to them.”
Dr. Nathan Harrison, president of the Gynecology Society of San Diego County, said his organization has taken no formal position on whether mothers should be told in advance that they will be tested for drugs.
“What you’re looking at is a legal question--the responsibility of society to the affected baby as opposed to the responsibility, in theory, of protecting the woman’s rights and confidentialities. That legal issue hasn’t been resolved.”
Harrison practices at Sharp Memorial Hospital in San Diego, where the policy is to ask the woman’s consent for drug tests if there are any indications of drug use or if she has had no prenatal care.
If the woman refuses, the hospital will inform her that it must do a urinalysis of the infant, said Jan Stichler, director of the hospital’s Women’s Center.
At Fallbrook Hospital, women are told in advance that they are to be specifically tested for drugs if circumstances warrant it, a spokesman said. On the other hand, mothers are not necessarily notified in advance that they might be specifically tested for drugs at Tri-City Medical Center in Oceanside, Palomar Medical Center in Escondido or Grossmont Hospital in La Mesa.
The testing at Palomar Medical Center “is not done against the people’s will or in secret,” said Kristen Meyer, director of patient and family services.
“When she’s admitted, she signs conditions of admission, the normal kind of permission you sign when you come to a hospital that gives the doctor and the hospital permission to do lab work, X-rays and whatever. If you come in with a broken leg, we don’t again specifically ask permission to X-ray your leg.”
The same logic is used for drug testing, she said.
Dr. Dave Chadwick, director of the center for child protection at Children’s Hospital of San Diego, said he believes women will eventually be grateful for drug testing, even if they balk at the time or it is done without their knowledge.
“I don’t think you harm a person by making her get off drugs,” he said. “If it were me, I might not like it at the time, but a year later I’d be mighty glad.”
He said he didn’t believe there was any consensus among San Diego area physicians on whether their patients should know in advance that they might be tested for drugs when they are admitted to a hospital for delivery.
“That’s a debate I want to initiate in the California Medical Assn.--the question of whether that’s the right or wrong thing to do. My own view is that every woman should be tested for drugs and should know about it. But an addict won’t see it that way. Their addiction is more important to them than anything else,” he said.
What about violating the woman’s legal rights, as expressed by the ACLU?
“Giving drugs to a baby is clearly wrong, too,” he said.
“Sure, you’ll probably drive some women away. On the other hand, you’ll probably get quite a few whom you’re not getting now,” he said.
“But the first thing we need, before we can make drug testing a universal practice, is the catcher’s mitt--a good way of providing treatment for addiction. And, right now, we don’t have adequate facilities, especially for poor persons who can’t afford in-patient, residential care. That’s the real issue here.”
When a child and mother are referred to Child Protective Services, an investigation begins into whether the mother is considered fit enough to care for the child.
The district attorney’s office represents CPS, serving in a civil versus criminal prosecution role, said Deputy Dist. Atty. Carlos Armour, in charge of its juvenile division.
“We won’t prosecute these mothers for child abuse for giving birth to these kids. My office won’t charge them for lack of prenatal care. We’re not trying to punish these people--and we can’t even share our information with the district attorney’s office in San Diego because ours is an entirely separate purpose,” he said.
Cases of child abuse prosecution, such as the charges against Pamela Rae Stewart last year, are handled separately by criminal prosecutors acting on their own, independent investigations, he said. “About the only way a mother that I deal with will be criminally prosecuted is if there’s a separate case involving her that’s being handled downtown,” he said.
Armour said he is sensitive that the presence of the district attorney’s office in the Child Protective Services process may scare some mothers away from proper medical attention, for fear their drug use will be detected.
“We don’t want to discourage a doctor-patient relationship. We’re walking a fine line, protecting children without discouraging moms from seeing doctors. But, if you stop filing (dependency petitions) for the kids who need help, you’re going to hurt them and they’ll just end up going back to a home where drugs are used.”
About the ACLU’s argument, he responds: “They ought to go over to Children’s Hospital and watch some of these babies go through withdrawal. That’s not a pleasant sight.”
Cindy Jones of Vista, meanwhile, hopes to have Cora Chasity home within 10 days. She said she and the baby’s father have agreed to undergo drug testing, and to participate in parenting classes, drug counseling and Narcotics Anonymous.
And she suggests that the blood test done by Tri-City Medical Center was faulty. “People have told me those machines can be wrong, and I’m still awaiting the results of the tests that were sent to an outside lab,” she said.
“There was no way I used crystal meth. The last time I used it was four years ago on Mother’s Day, when we all went out to the desert for a party and we all brought some drugs along. Hey, everyone’s got a vice.
“I had been clean for several years, and, when I used it that weekend, I swelled up like a fish. I had a strong allergic reaction to it and was treated at Chula Vista Hospital. I haven’t touched the stuff since. I even react just by smelling it.
“And, once I learned I was pregnant, I stopped using cocaine immediately. I don’t know how they could find crystal meth or cocaine in my blood. And I know I’ll test clean and get my baby back. They have no idea what they’ve put me and my kids through.”
A private Juvenile Court hearing to determine whether the infant can be released from the foster home to a relative of Jones, until returned to Jones herself, will be held Monday.