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Articles - Gender issues
Written by Ernest Drucker   

Children of war

The criminalization of motherhood


This November, in a Bronx hospital, Maria R. gave birth to her second daughter, Keesha, 61bs. 60z. Two weeks later, the 26 year old Puerto Rican mother returned to the same hospital and kidnapped her own child. "Kidnapped" - that was the term used by the hospital staff in discussing the incident. It seems that Maria, who speaks little English, is a drug user mostly cocaine in the streets of the South Bronx. Shortly after the delivery, a test was done which discovered metabolites of cocaine in the baby's urine, suggesting maternal use of the drug within the last 48-72 hours. Maria was released from the hospital after a week, but the baby was kept for observation. While cocaine has been found to be associated with low birthweight and some problems in early infancy, Keesha appeared to be healthy. But her Mother was not so fortunate. She was living in and out of various friends' and relatives' apartments, sometimes on the streets or in City shelters, and sometimes in one of the many Bronx "crack houses". While the baby's father was working, it was not clear that Maria could offer a decent environment in which to care for her new baby. Of two previous children, one daughter, age three lived with her. The other, a six year old boy, was in the care of family members in Puerto Rico

Under New York State law a child who tests positive for drugs at birth is presumptive evidence of neglect or abuse by the mother. Such children are routinely held in the custody of the hospital until the babies' health status is stabilized and some judgement can be made about their custody. There are three alternatives. The baby can be released to the custody of the mother, but this is dependent on her persuading the social workers involved in the case that she is attempting to gain some control over her drug use, usually by entering a drug treatment program. Another option is for other family members to take custody of the child. The maternal grandmother is most frequently the family member who takes this role with, depending on her condition, varying degrees of involvement by the mother. Finally, there is placement in the foster care network operated under the auspices of New York City or private agencies. This is the outcome in about 50% of such cases.

In the case of baby Keesha, negotiation had been underway with already worked full time, had two children of her own and frequently looked after Maria's other daughter already. This time she was unwilling to take on the additional burden. As the family foster care option did not materialize, the Child Welfare Agency social workers had recommended, and a family court judge ruled, that Keesha andthe three year old should go into foster care. Upon hearing of this judgement, Maria and Keesha's father entered the hospital to "visit" and left with the child.

The hospital staff, especially the administration and nursing directors were all very upset. It was they who had used the term "kidnapped" to describe the case in a meeting previously scheduled to discuss the development of new programs to help deal with the problems of drug use in pregnant and postpartum women. "Bad patient, good mother," I commented on hearing the story. But this was not a popular opinion. Most hospital staff and child welfare workers are completely torn apart by the conflicts between their responsibilities to ensure such children's health and welfare and their concern for the mother's rights. In the harsh adversarial climate of the U.S. drug wars, in which moral indignation often substitutes for provision of meaningful treatment and care, for these infants and their mothers can break your heart.

Tox Babies

Such tales of crack/cocaine and child custody are now repeated a thousand times each year in the Bronx. In our hospital alone, out of 3,200 births, nearly 400 tested positive for drugs in 1988. We call them "Tox Babies" for the toxicological examinations they undergo. Since the test is only performed where there is some history of maternal drug use or indication that the child is unwell with drug use as a possible factor, we must assume that there are even more such children who go undetected. In all likelihood, somewhere between 20 and 25% of all women giving birth in New York City hospitals which serve poor, inner city communities are involved in drug use.

This huge prevalence of drug use by women is now apparent in overall maternal and child health statistics for New York City and elsewhere. In the last ten years, New York City has experienced a four-fold increase in the presence of drugs detected in babies at delivery (see figure). Most of this increase is accounted for by cocaine, the use of which has increased twenty fold in the same period. This rise in cocaine use (mostly in the form of crack) is associated with a concurrent rise in adverse outcomes among infants, e.g. low birth weight which is itself associated with increased infant mortality and, in all likelihood, other developmental deficits. According to the New York City Department of Health, "this problem has exploded like a grenade" as more than 3,000 such babies were born here in 1988

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The City's Human Resources Administration projects that 66,000 cases of child abuse and neglect will be reported in 1989 (up from 18,000 in 1980). Much of this increase is attributed to drug use. The City's foster care case load,16,000 in 1984, is today approaching 50,000 plus another 10,000 in the care and custody of family members other than the parents. Over 4,000 of this total is directly linked to maternal drug use - a 300% increase in just three years. It is of course impossible to separate these indicators from increased sensitivity to the problem and the greater likelihood of case reporting that goes along with such awareness. And, more crucially, it is not at all apparent that the observed increases in adverse birth outcomes are attributable to the drugs per se. i.e. to the toxic-pharmacological effects of a specific substance. Even cocaine used in high doses during pregnancy is not unequivocally linked to any foetal defect other than low birthweight and small size. The vast majority of infants born to drug-using mothers are as "healthy" as other infants born in poverty.

What is clear, however, is that the conditions under which crack/cocaine is commonly used by women during their pregnancy, preclude many of the elements known to be necessary for a healthy pregnancy or delivery, i.e. good nutrition, reduced physical and emotional stress and, especially, attention to prenatal health care such as regular medical examinations and follow-up. In New York City, maternal cocaine users were seven times less likely to receive prenatal care than non-drug users. Other concurrent diseases to which cocaine-using women are vulnerable are also major risk factors for adverse infant outcomes. The high levels of sexual activity and number of partners associated with these women's crack use, increases exposure to all sexually transmitted diseases - and among these women we see rates of STD's 4.5 times higher than among non-users. Cases of congenital syphilis among newborns, which carry a 25% fatality risk, rose by almost 600% between 1985-1989 (from 60 cases to 360). Finally, the role of AIDS and HIV infection in this group is already significant and will grow more so over time. (This will be the subject of several future articles in IJDP).

Victims and Villains

These data are alarming and should lead us to re-examine the special consequences of drug use by women for an entire generation of children and the special responsibilities that we as a society might have for them. In many cases such women were themselves (only a short time ago in the case of teenage mothers), the children of a drug-using parent. One study, from Philadelphia, reports that 83% of drug-using mothers, had one or both parents who were drug-users. Aside from underscoring the multigenerational nature of drug use in America's inner-cities, this pattern raises a number of important ethical and moral questions. Who is the victim and who is the villain?

A series of recent court cases in the United States, in which drug-using women have been prosecuted for the inevitable consequences of their behaviour, illustrate this dilemma. Last April, in Rockford, Illinois, Melanie Green, age 24, was arrested and charged with involuntary manslaughter in the death of her newborn baby Bianca at two days - allegedly because of the mother's self-admitted cocaine use during pregnancy. Melanie was also charged with "delivery of a controlled substance to a minor". The case drew huge media coverage via several national TV shows and stories in TIME magazine and the Wall Street Journal The Winnebago County State's Attorney, Paul Logli, who prosecuted the case, argued that "persons who know the difference between right and wrong, but are unwilling to conform their behaviour to acceptable standards (and evidence) behaviour which is so wanton in its disregard for human life... must be held accountable", adding that prosecutors must "stretch the criminal justice system to protect those members of society least able to protect themselves".

Medical and legal experts quarrelled both about the facts of the case and about the larger principles involved. There was considerable uncertainty about the causal relation of Melanie's cocaine use to the infant's death, and fierce debate about the applicability of both manslaughter statutes and local drug laws to this case. In early May, a Rockford grand jury, which declined to rule on the manner of Bianca Green's death, dismissed the case entirely, refusing to indict Melanie for either of the charges. Melanie, who was entering a 21 day drug treatment program and planning to leave Rockford altogether thereafter, said, "I'm trying to get my life together and people will always be saying, 'coke mom"'. A local newspaper account reported that, when she was arrested, Melanie Green had two pictures of Bianca in her wallet; one other showed the baby alone, hooked up to a heart monitor.

The Rockford case was the first to attract national attention because of the manslaughter charge, but it was not the first time that a criminal justice approach to drug use during pregnancy had been tried. In Altamont Springs, Florida, in December of 1988, a 29 year old woman, Suzette (Tony) Hudson was charged with "child abuse" and "delivery of drugs to a minor". Her son Michael had been born in November with traces of cocaine in his system and infected with congenital syphilis. He had been in a foster home since birth but, after a month, his mother was arrested on a local street corner known for drug sales. While other Florida prosecutors had in the past charged drug-using mothers with child abuse, this was the first case in which the State charged violation of drug laws. Conviction on child abuse charges carry a maximum sentence of 6û days in the county jail, but the drug charges expose the defendant to 30 years in prison.

The information on Tony Hudson's drug case was gathered by a County social worker shortly after the baby was born and the positive urine test had been reported, (as required by law), to the Seminole County Department of Health and Reh~bilitation Services. This may have played some role, in the case's outcome since it was eventually dropped by the prosecution due to "technical problems" with the evidence. But Seminole County Assistant State Attorney Jeff Dean, who had unsuccessfully prosecuted Tony Hudson, promised to "go after" similar cases. He soon delivered on this promise when another 24 year old Altamont Springs woman, Jennifer Johnson, was accused of "giving drugs through the umbilical cord" to her baby girl. The baby, who is quite healthy, had been born in January with traces of cocaine in her blood, as had a previous son born to Jennifer in 1987. Both children, along with four others born earlier, are being cared for by relatives. In this case the incriminating information about the mother's drug use during pregnancy had been given to a physician attending the delivery - Dr. Randy Tompkins who, under cross examination, testified that the mother told him about the drug use "only because she was concerned about her baby's safety". This case resulted in a conviction, which drew a sentence of 15 years probation, and a public comment of support from Florida Governor Bob Martinez, who lauded the "strong stand" taken on drugs in his State.

responsibility for children can be seen in a recent initiative by the State of Hawaii. A new program called "Healthy Start" will screen every patient giving birth in the island's hospitals for risk factors of child abuse and neglect, including drug use. It will offer a range of services intended to help troubled families to cope with economic and psychological problems for up to five years. This will include the services of home visitors, pediatricians, mental health and drug treatment professionals, made available at no charge, on an extended basis to all families who, screening suggests, are at risk as potential abusers. This program's cost, which is expected to be $6 million annually, would be equal to the expense associated with neonatal intensive care services for just 36 low birth weight children born to cocaine users in the Bronx.

But the Bronx is not Hawaii and in New York, the lines are drawn for a new battle in the drug wars. This December, the American Civil Liberties Union Women's Rights Project filed its own suit - the first in the nation to challenge the widespread practice of exclusion of pregnant women from drug treatment programs. The suit is directed against four New York hospitals, two of them operated directly by the City. Only one small program in New York offers residential treatment for pregnant women and few outpatient drug treatment programs deal with the particular needs of women during their pregnancy or with childcare problems afterwards. Kary Moss, the attorney who filed the suit for the ACLU, said, "refusing treatment to pregnant women is more than just discrimination, it sets off a chain reaction that brings long-term harm to these women and their children"... While few feel that it is a simple matter to treat these women's addiction, it is unquestionably in everyone's interest to do so. To deliberately exclude such women and, by implication, their children from a network of care is ultimately far more criminal than anything the mothers do. After all, we do not have the excuse of untreated addiction to account for our neglect of these children's welfare.

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Ernest Drucker, Ph.D is director of the Drug Treatment program and Professor of Epidemiology and Social Medicine at Montefiore Medical Centre/Albert Einstein College of Medicine in the Bronx

Thanks to Ellen McGarahan of the Miami Herald, David Shair, Rockford, Illinois and Jessie Drucker who provided material for this article


Our valuable member Ernest Drucker has been with us since Sunday, 19 December 2010.

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