Newborn Drug Testing Laws

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Imagine having to fight through heroin withdrawal before you have a chance to take your first steps or say your first words. That is the unfortunate reality of Neonatal Abstinence Syndrome, a medical condition that affects babies who are born to mothers that abuse drugs during pregnancy. With the opioid epidemic still raging, cases of Neonatal Abstinence Syndrome (NAS) are on the rise.

How Many Babies Are Born Addicted to Drugs?

There are no standardized drug testing requirements that mandate hospitals to test pregnant women or their newborns. Because of the lack of data, the exact number of babies who are born addicted is unknown. Reports by the National Institute on Drug Abuse & the CDC state that 32,000 babies were born with Neonatal Abstinence Syndrome in 2014, which is over a 400% increase from 2004. These reports estimate that a baby is diagnosed with Neonatal Abstinence Syndrome every 15 minutes in the United States. The statistics are alarming, but not surprising given the number of people affected by the opioid epidemic.

Newborn Drug Testing Laws in Hospitals

In most cases, it’s up to doctors and hospital protocol to determine when to perform drug tests. Hospitals typically take a risk-based approach to testing infants. Medical staff will only drug test babies of mothers who are suspected of substance abuse or have a history of substance abuse. Unfortunately, this could lead to some exposed infants slipping through the cracks. Testing of newborns is done using samples from urine, meconium, blood, hair, umbilical cord blood or tissue samples. Some child advocacy groups are advocating for universal drug testing of newborns and mothers upon delivery.

Federal Newborn Drug Testing Laws

Even though it isn’t required by federal law to drug test all mothers and new babies for NAS, some states have legislation to protect infants. In certain states, women can be charged criminally, while other states consider it child abuse, and therefore the responsibility of Child Protective Services.

For most health institutions across the U.S, screening every newborn for non-medical drugs is impractical and not cost-effective. Only four states (North Dakota, Minnesota, Iowa and Kentucky) require hospitals to test both new mothers and their children if medical professionals suspect drug use. Otherwise, the law on drug testing newborns varies from state to state. More and more states are adopting drug testing for newborns because of the recent increase in opioid use and the resulting increase of babies that are born addicted. Pregnant women, of course, are not excluded from the recent spike in opioid addiction rates.

While this is a national problem that occurs across the country, some areas are more affected than others. A study from the Journal of the American Medical Association found that incidences of NAS are more common in rural areas than urban communities. One of the most affected states is Tennessee, where District Attorneys have filed lawsuits against opioid manufacturers on behalf of their counties and children born with NAS.

What States Drug Test Newborns in 2022?

Tennessee is the only state that has a statute that explicitly states that drug use during pregnancy is a crime. According to this study by Pro Republica, The following states consider substance abuse during pregnancy a form of child abuse. In these states, women that abuse drugs and alcohol during pregnancy can be charged under statutes that protect unborn babies from child endangerment or child abuse:

  • Arkansas
  • Colorado
  • Florida
  • Illinois
  • Indiana
  • Iowa
  • Louisiana
  • Minnesota
  • Nevada
  • Oklahoma
  • Rhode Island
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Virginia
  • Wisconsin

Three of these states, South Dakota, Minnesota and Wisconsin have determined that women who are found to abuse drugs during pregnancy can be involuntarily committed to a drug treatment program. This involuntary commitment is called a Baker Act or a Marchman act.

The following fifteen states require that hospital staff and other health care workers report drug use if they suspect that a pregnant mother is using:

  • Alaska
  • Arizona
  • Illinois
  • Iowa
  • Louisiana
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • North Dakota
  • Oklahoma
  • Rhode Island
  • Utah
  • Virginia

States with laws and policies against NAS justify their regulations by upholding the decision that a fetus is a person. All acts that could endanger a viable fetus are considered forms of child abuse and charged as such. At the other end of the spectrum, a California woman was indicted for drug use in pregnancy in 1977. This was however overruled by an appeal court, stating that lawmakers should not have used the word “child” to refer to an unborn fetus.

What Happens if a Newborn Tests Positive for Drugs?

When a newborn baby tests positive for drugs, the consequences could involve removing the child from maternal custody through the state or an agency like child protective services. Some states have legal ramifications, and pregnant women or new mothers can face serious legal consequences if they test positive. These consequences vary from state to state.

  • Treatment

The court system is usually more lenient towards women who recognize their addiction problem and attend a treatment program. Some states like Wisconsin, Minnesota and South Dakota take this a step further by committing mothers to addiction treatment programs. against her will if health care professionals report substance abuse. Some drug rehab centers have specific programs that allow new mothers to bring their newborn with them into the addiction treatment program.

  • Revocation of Custody

In states that consider drug abuse an act of child abuse, Mothers could potentially have their children taken away if they are found to have used drugs during pregnancy. Positive drug test in a newborn is considered part of welfare law. In these states, child protective services have the right to take the child away from the mother to prevent further abuse and neglect.

  • Reporting Abuse

In Massachusetts, Arizona, Virginia, Alaska and Illinois, medical professionals must report positive drug tests to Child Protection Services. A report could lead to investigations of both parents to see if they are fit to raise the child. In worst-case scenarios, mothers can lose their parental rights. There are even lawsuits against opioid manufacturers for the damages these medications cause to newborns. In some statues, the mother of a child born with an addiction could even be jailed, which would automatically place the child into foster care.

Addiction Treatment in South Florida

If you are pregnant and need help with a drug and alcohol problem, it’s essential to get help before it’s too late. Medically monitored detox and inpatient treatment is the best way to ensure you and your baby are healthy. At Ambrosia Treatment Center in South Florida, we help those struggling with addiction and dual diagnosis disorders find freedom. To find out more information about treatment, visit our admissions page today.

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