Are you confused about Tennessee’s new law regarding pregnancy and substance use? You are not alone! On July 1, 2014, a new law went into effect stating that a woman who gives birth to a baby, who is harmed by her illegal use of a narcotic drug while pregnant, can result in assaultive offense charges. If a pregnant woman enters into a treatment program and gets prenatal care, these positive actions can be used as an affirmative defense.
Sounds pretty simple, right? If you have a legal background, maybe! First of all, in the State of Tennessee, a baby is not considered a baby until the day of the birth; therefore, women who are pregnant and using drugs cannot be charged with a crime. Once the baby is born and the baby has symptoms of Neonatal Abstinence Syndrome or other harm as a result of the Mother’s drug use, the mother could be charged with misdemeanor assault.
In recent conversations with service providers, I was informed that both service providers as well as pregnant women with addiction issues are confused and think that if they are not “clean” at the time they access prenatal care that they will be arrested. This is NOT true and should be corrected as soon as possible. Medical professionals who are providing care are NOT required to report the drug use of a pregnant woman. Again, that baby is not defined as a baby until the day the child is born.
Once the baby is born and the hospital confirms drug use of the mother and that harm to the baby has occurred as a result, the birthing facility is required to file a report with the Department of Children’s Services, who then opens a case and notifies local law enforcement. If the birth mother can document that she is actively engaged in a treatment program AND received prenatal care, charges will NOT be filed. If she cannot produce verification that she is in a treatment program, misdemeanor charges will then be perused and the Mother arrested.
It is critical for both the health of the mother and the baby to receive prenatal care as early in the pregnancy as possible. For a woman struggling with the disease of addiction, this is even more paramount. There have already been some women who have reported buying Methadone off the street and trying to detoxify themselves prior to seeking medical care. This can be very dangerous for both the mother and the baby. Detoxification of pregnant women should be medically managed and the tapering process should be gradual.
It is up to all of us to spread the word and make sure we are not making an already difficult situation worse for fear of criminal charges. This law was put in place to encourage women to access treatment for their addiction and deliver the healthiest baby possible.
Note: This law has a sunset provision and will expire on June 30, 2016.