Pregnancy and Alcohol

Legal Significance for Child Abuse/Child Neglect

Laws that clarify the admissibility of evidence in child welfare proceedings regarding prenatal alcohol exposure as it pertains to allegations of child abuse, child neglect, child deprivation, or child dependence, or proceedings seeking termination of parental rights.

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About This Policy: Legal Significance for Child Abuse/Child Neglect

(Period Covered: 1/1/2003 through 1/1/2018)

This policy topic covers laws that clarify the admissibility of evidence in child welfare proceedings regarding prenatal alcohol exposure as it pertains to allegations of child abuse, child neglect, child deprivation, or child dependence, or proceedings seeking termination of parental rights.

Scientific research has established that alcohol consumption during pregnancy is associated with adverse health consequences. Fetal Alcohol Spectrum Disorders (FASD) is the term used to describe the range of birth defects caused by maternal alcohol consumption during pregnancy. FASD are considered the most common nonhereditary cause of mental retardation.  Included in Fetal Alcohol Spectrum Disorders is the diagnosis often referred to as Fetal Alcohol Syndrome (FAS), which is the most severe form of FASD. It is characterized by facial defects, growth deficiencies, and central nervous system dysfunction. Also included in FASD are other types of alcohol-induced mental impairments that are just as serious, if not more so, than in children with FAS. The term "alcohol-related neurodevelopmental disorder" (ARND) has been developed to describe such impairments. Prenatally exposed children can also have other alcohol-related physical abnormalities of the skeleton and certain organ systems; these are known as alcohol-related birth defects (ARBD). (National Institute on Alcohol Abuse and Alcoholism, June 2000; Warren and Foudin, 2001; SAMHSA, 2004).

The legal significance of a woman's conduct prior to birth of a child and of damage caused in utero varies considerably across jurisdictions. Some States have adopted statutes and/or regulations that clarify the rules for evidence of prenatal alcohol exposure in child welfare proceedings (e.g., those alleging child abuse, child neglect, child deprivation, or child dependence, or concerning termination of parental rights). This section of APIS addresses these statutes and regulations.

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Alcohol:  Legal Significance for Child Abuse/Child Neglect

  1. APIS collects legal provisions that either specifically refer to FASD or issues related to prenatal alcohol exposure or refer to a condition that reasonably may be interpreted as referring to FASD or prenatal alcohol exposure (e.g., "prenatal substance abuse," "prenatal legal drug abuse") or to a condition that reasonably may be interpreted as referring to alcohol abuse (e.g., "substance abuse," "use of legal drugs," "addictive drug," "drug of abuse").
  2. APIS does not collect provisions that refer only to "controlled substances" or those that exclude alcohol.

Explanatory Notes and Limitations Applicable to All APIS Policy Topics

  1. State law may permit local jurisdictions to impose requirements in addition to those mandated by State law. Alternatively, State law may prohibit local legislation on this topic, thereby preempting local powers. For more information on the preemption doctrine, see the About Alcohol Policy page. APIS does not document policies established by local governments.
  2. In addition to statutes and regulations, judicial decisions (case law) also may affect alcohol-related policies. APIS does not review case law except to determine whether judicial decisions have invalidated statutes or regulations that would otherwise affect the data presented in the comparison tables.
  3. APIS reviews published administrative regulations. However, administrative decisions or directives that are not included in a State's published regulatory codes may have an impact on implementation. This possibility has not been addressed by the APIS research.
  4. Statutes and regulations cited in tables on this policy topic may have been amended or repealed after the specific date or time period specified by the site user's search criteria.
  5. Policy changes in APIS are presented as of the date these changes take effect as law.  Users should be aware that in some situations there may be a delay between the effective date of a law and the time a corresponding policy change occurs in practice.  Because APIS research is based entirely on primary legal source materials (codified statutes and regulations and, on rare occasions, published court opinions), APIS is unable to accurately determine when policy changes may appear in practice.
  6. If a conflict exists between a statute and a regulation addressing the same legal issue, APIS coding relies on the statute.
  7. A comprehensive understanding of the data presented in the comparison tables for this policy topic requires examination of the applicable Row Notes and Jurisdiction Notes, which can be accessed from the body of the table via links in the Jurisdiction column.

(Policies in effect on: 1/1/2018)

Our research identified no Federal statutes or regulations pertaining to a woman's alcohol consumption during pregnancy as a factor in child abuse/child neglect proceedings.

  1. Abel, E.L., and Kruger, M. Physician attitudes concerning legal coercion of pregnant alcohol and drug abusers. American Journal of Obstetrics & Gynecology 186(4):768-772, 2002.
  2. Bishop, D., Borkowski, L., Couillard, M., Allina, A., Baruch, S., & Wood, S. (2017). Bridging the divide white paper: Pregnant women and substance use: Overview of research & policy in the United States. Jacobs Institute of Women's Health: Paper 5. Retrieved from: https://hsrc.himmelfarb.gwu.edu/cgi/viewcontent.cgi?referer=https://www.....
  3. Davis, A.S., Hoover, K.L., Moore, B.M., & Petrenko, C.L.M. (2016). Neuropsychological aspects of prevention and intervention for FASD in the USA. Journal of Pediatric Neuropsychology, 3(1): 7-24. doi:10.1007/s40817-016-0024-x.
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  5. Duso, A.J., & Stogner, J. (2016). Re-evaluating the criminalization of in utero alcohol exposure: A harm-reduction approach. 24 William & Mary Bill of Rights Journal, 24(3).  Retrieved from http://scholarship.law.wm.edu/wmborj/vol24/iss3/4/.
  6. Floyd, R.L., Ebrahim, S., Tsai, J., O'Connor, M., and Sokol, R. Strategies to reduce alcohol-exposed pregnancies. Maternal and Child Health Journal 10(5):149-151, 2006.
  7. Golden, J. Message in a Bottle: The Making of Fetal Alcohol Syndrome. Cambridge: Harvard University Press, 2005.
  8. Hagan, Jr., J.F., Balachova, T., Bertrand, J., Chasnoff, I., Dang, E., Fernandez-Baca, D., et al., on behalf of Neurobehavioral Disorder Associated With Prenatal Alcohol Exposure Workgroup, American Academy of Pediatrics. (2016). Neurobehavioral Disorder Associated With Prenatal Alcohol Exposure. Pediatrics, 138(4): e20151553. doi: 10.1542/peds.2015-1553.
  9. Hagan, J.F. Jr., Balachova, T., Bertrand, J., Chasnoff, I., Dang, E., Fernandez-Baca, D., Kable, J., Kosofsky, B., Senturias, Y.N., Singh, N., Sloane, M., Weitzman, C., Zubler, J., on behalf of Neurobehavioral Disorder Associated with Prenatal Alcohol Exposure Workgroup, American Academy of Pediatrics. (2016). Neurobehavioral disorder associated with prenatal alcohol exposure. Pediatrics. Published online 2016 Sep 27. doi: 10.1542/peds.2015-1553.
  10. Jessup, M.A., Humphreys, J.C., Brindis, C.D., and Lee, K.A. Extrinsic Barriers to Substance Abuse Treatment Among Pregnant Drug Dependent Women. Journal of Drug Issues 33(2):285-304, 2003.
  11. Jones, K.L., and Streissguth, A.P. Special issue introduction: Fetal alcohol syndrome and fetal alcohol spectrum disorders: A brief history. Journal of Psychiatry & Law 38(4):373-382, 2010.
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  13. Racine, E., Bell, E., Zizzo, N., & Green, C. (2015). Public discourse on the biology of alcohol addiction: Implications for stigma, self-control, essentialism, and coercive policies in pregnancy. Neuroethics, 8: 177. doi:10.1007/s12152-014-9228-x.
     
  14. Roberts, S.C., and Nuru-Jeter, A. Women’s Perspectives on Screening for Alcohol and Drug Use in Prenatal Care. Women’s Health Issues 20(3):193-200, 2010.
  15. Roberts, S.C., and Pies, C. Complex Calculations: How Drug Use During Pregnancy Becomes a Barrier to Prenatal Care. Maternal and Child Health Journal 15(3): 333-41, 2011.
  16. Roberts, S.C.M., Thomas, S., Treffers, R., & Drabble, L. (2017). Forty years of state alcohol and pregnancy policies in the U.S.: Best practices for public health or efforts to restrict women’s reproductive rights?" Alcohol and Alcoholism, 52(6): 715-721. doi: 10.1093/alcalc/agx047.
  17. Seiler, N.K. (2106). Alcohol and Pregnancy: CDC’s health advice and the legal rights of pregnant women. Public Health Reports, 131(4): 623-627.
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  19. Subbaraman, M.S., Thomas, S., Treffers, R., Delucchi, K., Kerr, W.C., Martinez, P. and Roberts, S.C. (2018). Associations between state‐level policies regarding alcohol use among pregnant women, adverse birth outcomes, and prenatal care utilization: Results from 1972‐2013 Vital Statistics. Alcoholism: Clinical and Experimental Research. doi: 10.1111/acer.13804.
  20. Substance Abuse and Mental Health Services Administration, Center for Excellence. Fetal Alcohol Spectrum Disorders (FASD). Accessed August 9, 2012 at: http://fasdcenter.samhsa.gov/.
  21. Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Substance Use Among Women During Pregnancy and Following Childbirth. Rockville, MD: The National Survey on Drug Use and Health Report, 2009.
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