How Pregnancy Drug Laws Hurt Children
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How Pregnancy Drug Laws Hurt Children


Shortly after Cassie Duran’s son was born, he began to suffer from symptoms of drug withdrawal. The newborn’s tiny body shook and shivered — and he often cried inconsolably. She blamed herself: Duran had taken methadone during pregnancy.

“I felt so bad,” the Boston native says, “I was like ‘I can’t believe I put my baby through this.’ You just feel so guilty and you beat yourself up.”

Cassie was on methadone to treat her heroin addiction — and the drug was prescribed by her doctor. Still, it’s hard to avoid the impulse to punish mothers who expose their infants to drugs and related withdrawal; many people instinctively want to whisk these babies away to a brand-new — presumably better — family.

But that punitive approach has not been effective in preventing drug-exposed pregnancies. In fact, studies show that states with the harshest laws tend to drive women like Cassie underground and away from prenatal care. And that puts both mother and baby at greater risk, not less.

If past drug epidemics are any predictor, sensational media coverage of babies’ drug withdrawal will lead to more moms like Cassie losing child custody. However, there is little evidence that this saves lives; in fact, research suggests a change of custody often leaves children even worse off. While the child welfare system is intended to protect children, in far too many cases, it exposes them to more trauma, neglect and abuse. And that’s not the end of it — states are also prosecuting mothers who are taking their medication as prescribed by their doctors.

The problem is urgent. With the sharp rise in heroin and prescription pain reliever addiction, the number of infants showing symptoms of opioid withdrawal after birth has quintupled since 2000, with nearly 22,000 cases in 2012 alone, according to the most recent data available. Unfortunately, the public — and even many court and government officials who should know better — are often unaware of what works best to help these families.

For one, prenatal drug exposure — by itself— isn’t always a sign of child abuse. In Cassie’s case, she was enrolled in a maintenance program — the best-studied and most-effective addiction treatment for heroin or other opioid addictions during pregnancy. That’s according to every medical authority that has examined the data, from the National Institute on Drug Abuse to the World Health Organization. Cassie was following doctor’s orders and had not taken any illegal drugs. “I was doing really well,” she says.

Cassie’s doctor prescribed methadone for a simple reason: if an expectant mother is already addicted to opioids, withdrawal can harm or even kill the developing child. Prescribing a legal opioid — either methadone or a newer drug, buprenorphine — minimizes this risk. It also reduces the mother’s risk of overdose death by 70 percent or more. While watching a baby go through withdrawal is unpleasant, there’s no evidence that infants who experience it suffer lasting harm.

But many child welfare agencies don’t know that — or refuse to recognize the data. Many social workers see maintenance therapy as the equivalent of taking street drugs — despite the overwhelming medical consensus and the fact that once patients are stabilized, they are not emotionally or cognitively impaired and can successfully parent, drive, and even work high-level jobs. Worse, because family court judges are also often ill-informed about maintenance therapy, women are increasingly losing custody of their children for taking their medication exactly as prescribed.

Even the federal law aimed at protecting prenatally exposed children fails to distinguish between babies who suffer withdrawal because their mothers took street drugs and those who are only taking medications that are legitimately prescribed. The statute mandates that all babies with what’s technically known as “neonatal abstinence syndrome” be reported to state child welfare agencies, regardless of whether the mother is in treatment or still misusing drugs.

For example, Jenessa Moman, an Ohio mom, became addicted to painkillers after her younger sister froze to death following a 2010 car crash. (Moman blamed herself for her sister’s death; she had helped search for her sister, but didn’t find her in time.) When Moman became pregnant, she sought help for her addiction immediately.

Following the best medical advice, she was given buprenorphine maintenance and stopped taking any unprescribed drugs. But since her daughter suffered withdrawal after she was born in July 2013, a child welfare investigation was opened. Even though Moman had been doing exactly what her doctor had asked of her — and even though she had no history of abusing or neglecting her children — she was accused of child abuse. As a result, she faced frequent, unannounced home inspections by social workers, which terrified her older child, who feared she would be taken away from her mother.

That fear was not unfounded, given the prejudice against maintenance treatment that exists in child welfare agencies. One Ohio child welfare official proclaimed his ignorance when asked to comment by NBC on these cases. He said “some doctors, some clinics, feel that [buprenorphine] is almost like a therapeutic drug.” It is not almost like a therapeutic drug. It is one: buprenorphine is an FDA-approved therapy for opioid addiction, and widely supported by experts for use in pregnancy.


How Pregnancy Drug Laws Hurt Children

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It’s also important to remember that foster care is often not the safe respite that it should be. Between a third and half of children who grow up in foster care report at least one experience of abuse or neglect in their placements, a study published in December found. For instance, foster homes increase a child’s risk of sexual abuse — one study found that children in foster care had a risk of rape or sexual molestation that was four times higher than in other families. It also may raise the likelihood that a child will be mistreated in other ways—rates of neglect and physical and emotional abuse  in foster homes were three times higher than in other, similar families. Frighteningly, the rate for physical abuse was increased sevenfold.

When mothers use drugs, however, this tends to outweigh all other considerations about their suitability as parents, regardless of whether it is actually in the best interest of the children to put them in foster care. Pregnant women who endanger their children in this way are often seen as monsters simply because they didn’t abstain while carrying their babies.

“We don’t have a child welfare system, we have a parent punishment system,” says Richard Wexler, executive director of the National Coalition For Child Protection Reform, explaining that prejudices about illegal drug users tend to trump rational considerations of risk. “If we really believe all the rhetoric about putting children’s needs first, we have to put them ahead of everything, including how we may feel about their mothers.”

And losing custody is often only the beginning of the punishment women like Cassie Duran can face. Some are criminally prosecuted for using the maintenance treatment for opioid addiction that is the standard of care. “How does that accomplish anything?” asks Elisha Wachman, a neonatologist at Boston Medical Center and assistant professor of pediatrics at Boston University School of Medicine, who works with infants born to addicted mothers and treated Cassie and her children. “It doesn’t make any sense.”

Alabama, South Carolina, Tennessee, and Wisconsin all have laws on the books that allow prosecution of women for “assaulting” or “chemically endangering,” their children with drugs. Infants’ withdrawal can be used as evidence, regardless of whether the drug was legally prescribed, according to National Advocates for Pregnant Women, a civil rights group. (Tennessee had one of the worst of these laws, but it was allowed to expire this week, a hopeful sign.)

The Nation documented two cases in 2014 alone where women who desperately sought treatment or were on maintenance faced arrest, despite having tried repeatedly to follow the best medical advice. And it’s not only opioids that put moms at risk of arrest either: in many cases, the only drug exposure reported is marijuana — or, in one notorious case, taking a single unprescribed Valium.

Still, what about the dangers of drug exposure during pregnancy? Though using illicit drugs while pregnant is obviously potentially dangerous and best avoided, the most common recreational drugs that have been studied — like marijuana and cocaine — are not typically linked with irreparable damage.

In fact, studies conducted during the last panic over “drug endangered” children — related to crack cocaine in the ’80s and early ’90s — found that the level of drug exposure in utero wasn’t what predicted how these children would do. Instead, what led to poor outcomes was poverty, exposure to domestic violence and being raised by someone who was actively addicted after birth — not how much cocaine was taken during pregnancy.

Moreover, research from the crack years also showed that simply labeling cocaine-exposed infants as “crack babies” often did harm. In one notorious example, authorities ignored years of evidence that four brothers were being selectively starved; they believed the adoptive parents’ claims that prenatal drug exposure had caused anorexia. The 19-year-old weighed 45 pounds when the state finally took action — and he rapidly gained weight when he was finally fed appropriately.

That wasn’t just an isolated incident, either. It turns out that the label “crack baby” can pathologize ordinary childhood behavior. A study published in the Journal of Developmental and Behavioral Pediatrics in 2002 for example, found that most researchers who did not know whether a child had been exposed to cocaine before birth couldn’t tell — even when they believed that they could. Also, when they were shown a video of a toddler, the same actions were seen very differently if the child was said to be a “crack baby.” In that case, normal crankiness was seen as much more troubling and the child was given lower scores on ratings of skills like speaking and manipulating objects.

Simply labeling a child a “crack baby” was enough to lower expectations of these children and make caregivers more likely to dole out punishment. That’s why experts warned the public and media against stirring up fear about “methamphetamine” babies — and why doctors are similarly concerned about opioid-related labels now.

Ironically, the only drug known to create an irreversible syndrome of brain damage is a legal one: alcohol.


How Pregnancy Drug Laws Hurt Children

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While proponents of “drug endangerment” laws and criminal penalties claim that they seek to protect children, there’s another motive at play, too. As is clear from their supporters’ arguments, a critical goal is to develop a legal case for fetal “personhood” in order to outlaw abortion. For example, the head of Personhood Alabama told The New York Times, “I think it would be unequal protection to give the woman a pass when anyone else who injects drugs into a child would be prosecuted.”

If women can be prosecuted for drug-dealing via umbilical cord, eventually, fetuses will be seen as equivalent to children. That allows the personhood movement to frame abortion as murder. As a result of the abortion fight, the “side effects” of “drug endangerment” legislation are ignored or played down, and the media is instead flooded with stories of infant opioid withdrawal.

Regardless of motive, criminalizing pregnant women ignores an important truth about early childhood: the bonding between parent and child during the first weeks of life is the foundation for lifelong mental health. The brain is rapidly developing in early infancy, and interactions with parents are crucial for how the brain’s stress systems develop. How a person handles stress is vital: it affects risk for everything from depression and addiction to obesity and cardiovascular disease. Interruptions in early bonding, then, have the potential to do irreversible harm to the child. Consequently, removing an infant from a parent’s custody should be a last resort.

“The first couple of weeks is when babies need their parents the most,” says Wachman. “For us, the most critical time is the first month.”

Wachman has treated hundreds of cases of opioid withdrawal in infants; 80 percent of babies born to opioid-dependent mothers go through it. She has seen the worst of what drug exposure can do to kids, particularly when mothers haven’t received prenatal care. She’s cared for premature babies who shake, who have eerie high-pitched cries, who seem impossible to soothe. In these cases, the infants are given low doses of opioids and weaned off of them slowly as symptoms subside.

Despite her first-hand encounters with opioid-dependent infants, Wachman strongly opposes separating mother and child simply due to drug exposure, unless there are other indications of risk for abuse and neglect. What helps these babies most is more exposure to their mothers — not less, Wachman says.

Encouraging breastfeeding and having the mother and newborn “room in” together reduces the baby’s risk of needing medication by 30 to 50 percent, Wachman says. She adds, “The biggest thing we can do is keep the baby with the parents, more than anything else,” she says. “That skin to skin contact, holding, everything you do that calms the baby makes a difference.”

At Boston Medical Center, the program for addicted mothers on maintenance treatment is called Project Respect. The central idea is that treating women with addiction with respect rather than contempt is both more likely to aid recovery and to empower them to care for their babies safely.

For Cassie, that respect was key to keeping her engaged in treatment. “I already feel like a piece of shit,” she says, “I’m not saying I want to walk in somewhere pregnant and all strung out using and have someone be like, ‘Oh good for you, that’s great…’ But I want someone to be like ‘It’s not okay, but I’m here to help you.’”

Keeping families together also improves the mothers’ odds of kicking drugs. When mothers know how important they are to their children’s health, that “deters them from relapsing,” Wachman says. In fact, the better women feel about their prospects for helping their children and the less they reflect on the pain that drug withdrawal may have caused them, the more likely they are to successfully recover. Says Cassie of Dr. Wachman, “She’s like family to me. I love her so much.”


How Pregnancy Drug Laws Hurt Children

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The greater risk of abuse and neglect and the dangers of interrupting the initial bond between parent and child aren’t the only problems with putting drug-exposed infants in foster care.

In many cases where babies are removed at birth, they will eventually be sent back home — so even in the best case scenario, they will face two custody transitions. And each of these is wrenching, especially for the youngest children.

Infants and toddlers are too young to remember the experience consciously. That doesn’t mean there are no consequences, however. These custody changes shape children’s sense of whether the world is safe and people can be trusted. “If every time you try to love and trust someone, that person is taken away, the trauma is compounded and the damage to that child’s psyche becomes more severe,” says Wexler.

Just two transitions is the best-case scenario, of course. Of the foster kids who stay in care for more than two years, two-thirds experience three or more shifts of custody. Each is a separate potential trauma, raising the risk for mental illness, school failure, juvenile delinquency, and yes, addiction.

The trauma from so many transitions may explain why foster care outcomes are often bleak. Indeed, in cases where authorities had a difficult time determining whether foster care or parental custody was best, the kids who stayed with their parents were better-off on every measure from crime and employment to teen pregnancy.

Trying to keep children with their parents is not only best for those parents, but for the kids, according to most studies. That’s not reflected in policy, though. When opioid withdrawal in infants itself is viewed as a crime, what’s best for the child is bypassed in lieu of punishment. This is to say nothing of the policies that ignore the distinction between therapeutic maintenance treatment and illicit drug use.

Indeed, in Project Respect, only about five percent of mothers in the program lose custody of their infants, Wachman says. “For the typical opioid dependent mother, it is always in the best interest of the child to keep them together.”

Cassie Duran knows the risks of the child welfare system; she herself was placed in foster care during her teens. That’s because her mom also suffered from addiction — first, alcoholism, then heroin addiction as well. Both conditions were driven by underlying depression. Her father also had alcoholism — but Cassie had only met him a few times before she learned, at age nine, that he’d died in a car accident.

During Cassie’s childhood, her mother’s mental illness was so severe that it left her on disability, frequently intoxicated and ill-equipped to meet her daughter’s needs. To Cassie, her mom seemed cold and distant. “My mother didn’t show any affection,” she says.

But she did express rage: Cassie screamed so loudly during beatings that she believes the neighbors knew exactly what was going on. Still, in a poor area of Boston, few wanted to interfere, even though Cassie sometimes had visible bruises when she went to elementary school.

Cassie started drinking at age ten or eleven. By thirteen or fourteen, someone in the system finally noticed she was being abused; soon she was shuttling back and forth between foster care, home, placement with relatives, and group homes, where she says she had to fight to defend herself. By fifteen, she had dropped out of school and was addicted to heroin. In her twenties she added crack to the mix and was soon involved in prostitution.

“I had a really rough childhood,” she says, “I just had no chance.” Stories like Cassie’s are the rule, not the exception, among pregnant addicted women. No one uses drugs while pregnant if she isn’t severely addicted — and the more severe the addiction, the higher the odds that trauma and mental illness are both involved. Among addicted pregnant women, for example, two thirds suffered sexual abuse as children themselves.

For families like Cassie’s, different approaches are needed. A few parenting classes and a brief bout of drug treatment usually isn’t enough— in most cases, all this will do is guarantee that children bounce in and out of foster care. Then, the cycle will repeat itself in the next generation.

A pilot program tested in Oregon tried a more comprehensive approach. Families at risk were provided with secure, supportive housing. They also received drug treatment, parenting education and high quality child care for 12 to 18 months. Afterwards, the program worked to ensure that the families moved on to safe, permanent homes. One hundred ninety-six children whose parents were enrolled in the program were compared to 54 similar children who had been removed from their parents’ care for drug-related abuse and neglect.

The children in regular foster care were twice as likely to be abused, neglected, or both a second time, compared to those in the program. The foster care group was also more than three times more likely to be taken back into foster care after having been returned once to their parents. In terms of the most important outcome — whether the children remained in the foster system or were permanently placed back home — the difference was just as stark. Some 92 percent of the children in the program ultimately stayed with their parents, compared to 52 percent with usual treatment.

More women need access to programs like Project Respect and comprehensive treatment like that found in the Oregon project. The good news is that late last year, President Obama signed into law an act that will create recommendations for best practices in prevention of and treatment for infants with opioid withdrawal. This should push law enforcement and child welfare agencies to accept maintenance treatment for pregnant mothers, which, given the data, will almost certainly be what is recommended. At the very least, it will provide a strong defense for such women. And there is also new legislation to provide for greater access to treatment.

Today, Cassie has three years in recovery and her own apartment. Richie, 16, her oldest son still lives with her aunt — but is doing well in school and they visit frequently. She lost custody of her second son during the worst part of her addiction, but is raising all three daughters, who are now aged 14, 10, and almost two. She’s in school, training to be an addiction counselor. And Project Respect has just offered her a job: she’ll be helping mentor other women. “It’s been a really long road,” she says. “I’m so grateful. I’m so blessed.


Maia Szalavitz is a neuroscience journalist. Her next book, Unbroken Brain, will explore why addiction is best viewed as a developmental disorder and what this means for treatment and policy.

Co-published with The Verge.

Save An Endangered Species: Journalists

Maia Szalavitz is a neuroscience journalist. Her next book, Unbroken Brain, will explore why addiction is best viewed as a developmental disorder and what this means for treatment and policy.

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