In recent months, pregnant women have been arrested and jailed in South Carolina, New Mexico, Arizona, Alabama, Colorado, Georgia, Missouri, North Dakota and New Hampshire, among other states, based on the claim that pregnant women can be considered child abusers even before they have given birth.
Women targeted for these arrests are usually those with untreated drug or alcohol problems.
Other women have also been arrested for endangering the fetus by not getting to the hospital quickly enough on the day of delivery and by not following doctor's advice to get bed rest. One woman who suffered a stillbirth was arrested for murder based on the claim that by exercising her right to medical decision-making and postponing a Caesarean section, she caused the death of her child.
Law enforcement officials often justify the application of criminal laws to pregnant women by claiming that the arrest and imprisonment of pregnant women will protect fetuses and advance children's health.
"We have to look at each fact to determine what the right thing is to do to protect the children," Jerry Peace, a South Carolina prosecutor, said recently.
But every leading medical organization to address this issue -- including the American Medical Association, the American College of Obstetricians and Gynecologists, the American College of Nurse Midwives, the American Academy of Pediatrics and the March of Dimes -- has concluded that the problem of alcohol and drug use during pregnancy is a health issue best addressed through education and community-based family treatment, not through the criminal justice system.
As leading public health and child welfare groups have long noted, pregnant women do not experience alcoholism and other drug dependencies because they want to harm their fetuses or because they don't care about their children.
Threats Don't Work
Medical knowledge about addiction and dependency treatment demonstrates that patients do not, and cannot, simply stop their drug use as a result of threats of arrest or other negative consequences. This is one reason why threat-based approaches do not work to stop drug use or to protect children. Such approaches have, in fact, been shown to deter pregnant women not from using drugs but rather from seeking prenatal care and what little drug and alcohol treatment may be available to them.
Health risks to women, fetuses and children -- whether arising from poverty, inadequate nutrition, exposure to alcohol, drugs or other factors -- can be mitigated through prenatal and continuing medical care and counseling.
For this to be effective, however, the woman must trust her health care providers to safeguard her confidences and to stand by her while she attempts to improve her health, even if those efforts are not always successful. Transforming health care encounters into grounds for prosecution and turning health care professionals into agents of law enforcement destroys this all-important trust.
Not only does the threat of arrest deter women from seeking care that could further both maternal and fetal health, but the imprisonment of pregnant women itself also poses significant dangers.
A 2005 Maryland case belies any claim that arresting pregnant women protects fetuses, children or families.
Kari Parsons was imprisoned specifically to protect the health of her fetus.
She was arrested when she was seven months pregnant because a drug test mandated as part of her probation for shoplifting returned a positive result. Though standard practice is to release people arrested for probation violations on their own recognizance until their later court dates, the judge in Parsons' case sent her to jail, citing his interest in protecting the fetus's health.
Born in a Jail Cell
Yet three weeks later, because of the judge's ostensible concern for the fetus, Parsons' son was born in conditions that put both his and his mother's health and life at risk.
Parsons gave birth to her son alone in a dirty Maryland jail cell furnished only with a toilet and a bed with no sheets. She had been in labor for several hours and had countless times pleaded for help and medical attention. The requests were denied.
The Jennifer Road Detention Center, where she was incarcerated, repeatedly ignored her cries that she was well into labor and needed to go to the hospital. Other inmates, hearing Parsons’ cries, implored guards to take her to the hospital.
Instead, guards took her out of a holding area with other inmates -- who had helped to time her contractions -- and put her in a cell by herself. A few hours later, Parsons gave birth completely alone, without health care or support of any kind. According to press reports, although completely healthy when he was born, Parsons’ son soon developed an infection due to the unsanitary conditions of his birth.
Only last week, a woman gave birth in a Harris County, Texas, jail cell. Another inmate who witnessed the birth told local television news reporters that despite the pregnant woman's pleas for medical attention, guards refused to help her. She gave birth in a jail cell without medical assistance.
The argument that arresting pregnant women protects fetal or maternal health is squarely contradicted by another typical prison condition.
Prisons throughout the United States restrain and shackle women throughout pregnancy and during labor, even though international human rights law bans restraints under these circumstances.
Treaties Ban Shackling
When Kari Parsons began to have labor pains a few days before giving birth, she was taken to a medical facility and later returned to the detention center. She was transported in handcuffs and shackles. Although international law and treaties signed by the United States prohibit the shackling of pregnant and birthing women, Amnesty International USA reports that only two states -- Illinois and California -- have banned the barbaric practice throughout pregnancy and childbirth.
Besides being dehumanizing and totally unnecessary for public safety, the use of shackles and handcuffs during pregnancy and childbirth is dangerous to maternal and fetal health.
Pregnant women in their third trimesters may already have balance problems; shackling their legs heightens the risk that a woman will fall, potentially injuring them and their fetuses. Also troubling is that the use of restraints during labor can, according to Amnesty International USA, “compromise the ability to manipulate (the pregnant woman's) legs into the proper position for the necessary treatment.”
Furthermore, when doctors need to remove the restraints to provide adequate care -- such as performing an emergency Caesarean -- it can take five or 10 minutes to locate the keys, unlock the shackles and free the woman's legs. This delay can be the difference between life and death for a woman or her child.
In 2005 Regina Kilmon and Kelly Lynn Cruz in Talbot County, Md., were arrested and charged with child abuse and reckless endangerment when they gave birth in spite of a drug problem. The local social services director, Cathy Mols, said that such prosecutions were “helpful in protecting children and families.”
Recently, Maryland's highest court unanimously overturned the convictions, concluding that the state legislature never intended its child endangerment law to be used as a basis for policing pregnancy. Such a ruling, however, should not have been necessary to persuade prosecutors and other state officials that arresting and imprisoning women is no way to protect pregnant women and their children.
Lynn M. Paltrow is executive director of National Advocates for Pregnant Women.
Julie B. Ehrlich is a law student at New York University and legal intern at National Advocates for Pregnant Women.