While she
was in
labor ,
Ward admitted
to
caregivers
that she
was a crack cocaine ad-dict and had frequently used
the
drug during
her
pregnancy.As
soon
as Ward's
sonwas born, he was tested for the
drug and was found
to
have traces
of
it in
his system.
As a result,Ward
was
charged
with
delivering a
controLLed
substance
to
a
minor,
and
her
children were placed in
the custody of
relatives.In August
20M,
Ward
pled
guiltyand
was
sentenced
to
five
years'
probation.
fiowever ,her
prosecution continues
to
becontroversial and is Likely
to
produce an important appeLLatecourt ruling in
the
nearfuture.
Wards
case and
others
Likeit are at
the
heart
of
a public
policy
debate regarding
the most
effective
way to
discourage pregnant women
from
using substances
that
mayendanger
the fetuses they
carry.
In the
United
States ,some
have drawn a paraLLelbe-
tween
drug use during pregnancy and
physical
abuse
of
an infant after birth and havesuggested
that
pregnant drug
users
be criminally
prosecuted. Prosecution
advocatesargue
that
injecting a newborn
with
a drug is a crime. Even if no damage is done
tot he child,
'aeLivering
controLLed
substances
to
a minor"
(the terminology
used in
most
jurisdictions) is
itself
a crime.One
problem with this
approachis
that
it isn't dear
whether
a fetus can be con-sidered
legaLLy
equivalent
to
a
child.
u.s.
Supreme Court rulings have introduced
theissue of
fetal viability into abortion law.
These
rulings
aLLowstates to
outlaw abortions
of
viable
fetuses
and
suggest
using
24
weeks
as
the
age
of
viability, based on currentresearch on prenatal development.
Thus,
it
would seem that states
could
also
use ex-isting
laws
against giving drugs
to
children and
child
abuse
to prosecute
women after
t he 24th
week
of
prenatal development.
In
addition,
doctors
often
seek
judicial inter-vention in
cases where
pregnant women make medical
decisions that
are potentiallydamaging
to their fetuses
(National Abortion and Reproductive
Rights
Action League[NARAL],1997).
In most such cases,
judges make rulings on
the
basis
of the best
in-
t erest of the fetus. fiowever ,
it isn't
always easy to
find
out whether
a fetus
or
newborn
has
been ex-
posed to drugs.The
difficulty is
that ,while
many drugs
pass through the
placenta,
t hey
don't
always do so
in sufficient amounts
to
be identifiable in a newborn's
blood or
urine.In addition,
some
drugs,Likemarijuana,remain in
the system for
a
long
time,making it
possible to t est f or them
several
days
after birth. But
others,
Like
co-
caineand
alcohoL ,
are excreted
fr om the
newborn's
body
within
hours of
birth.
Thus,
drug
testing must
be carried
out almost
immediately after birth
to
determine
whether the
newborn
has
been prenatally
exposed to
potentially harmful drugs (Cen-
t er sfor
Disease
C ontrol
[CDC],199Gb).An additional difficulty is
that
drug testingatbirth usuaLly reveaLs
Little or
nothing about drug
exposure
earlier in
the
pregnancy.Consequently, a pregnant womancould "deliver" a drug
to her
viable fetus during,
for
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