Should Hospitals Test Pregnant Women for Drug Use Without Their Consent?

Should hospitals test pregnant women for drug use without their consent? Hospitals, during their normal course of treatment should test pregnant women for drugs of any type, whether legal or not. Of course, the patient should be informed of such testing, but consent should not be required. Findings of illegal drugs should be used to educate and treat the mother for an addiction rather than informing law enforcement of such an activity. Hospitals are in the business of treating people’s ailments and promoting health. Reporting of illegal drug use should be left to law enforcement.

An exception to the rule is if the illegal activity is personally witnessed by hospital staff. In cases of pregnancy, the hospital’s duty and obligation is to both the mother and unborn child. In a best case scenario, both mother and child are in excellent health and the mother is abstaining from any harmful substances, regardless of its legality. In cases that are less than best, the mother is placing her child at great risk. The ultimate risk is obviously death of the unborn child prior to term. Infants that have an exposure to drugs suffer from many ailments, some of which are permanent.

Such ailments include seizures, tremors, excessive sweating, low birth weight, retardation, bone and skeletal defects, infections, missing or deformed limbs and social disorders to list a few. The hospital’s moral obligation is immediately to the mother and child but must also weigh the possible weight that society must bear when a child of a chemically dependent mother is born. Specifically here, of an illegally chemically dependent mother. Typically, drug users have limited education, possess limited working skills and are frequently unemployed.

These factors can put a strain on government in providing services to sustain them, i. e. welfare and public medical benefits. Additionally, the child would also be a burden because government will likely provide services to sustain them and possibly, eventually becoming a ward of the state. A small study in England shows that approximately 1/3 of children born of chemically addicted mothers is no longer with them one year after birth. This is why hospitals must use drug abuse information gained by testing to educate and treat the addiction.

The good that such education and treatment not only benefits mother and child but ripples throughout the entire community and economy. Hospitals also have a duty and obligation to protect the mother’s right to privacy. Releasing medical and treatment information without their consent is a violation of HIPAA, Health Insurance Portability and Accountability Act, and of the Privacy Rule that protects mother’s personal health information from being disclosed, again without consent. Hospitals are to be in compliance of the law but not to enforce it.

That should be left to law enforcement to handle. Disclosure to law enforcement without consent may also be a violation of the mother’s 4th Amendment right, the right against unreasonable search and seizure. Again, the mother has the right to privacy; “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …”, in this case, their medical information and treatment. Speaking of law enforcement, law enforcement may prosecute the mother of a crime that has not been directly witnessed.

Use of illegal drugs is not being condoned, but law enforcement must have first hand knowledge of it to act. Prosecution may serve as a disservice as well. Imprisonment and punishment only serves the crime committed but not the individual. Although very difficult to measure, drug use is very prevalent within the prison system. Some reports show that up to 50% of inmates have or continue to use drugs while imprisoned. Where is the benefit? Serving a prison term for drug use and continuing to use them does not solve the problem. So, should hospitals test pregnant women for drugs? Absolutely.

But hospitals must use this informational gain to educate, treat and attempt to eliminate the addiction. Any other use of this information should be strictly prohibited. Hospitals are to serve for the benefit of society’s health and well being. Of course there are exceptions, but generally leaving law enforcement out of the equation will allow hospitals to do their thing and benefit society. Should their method fail, law enforcement will have their opportunity given time. Resources: Drug tests of non-consenting pregnant women quashed American Medical News; Chicago; Apr 9, 2001; Vida Foubister

JAMA. 2003;289:1697-1699, The Status of Pregnant Women and Fetuses in US Criminal Law Lisa H. Harris, MD, University of Michigan, Ann Arbor Lynn Paltrow, JD, National Advocates for Pregnant Women, New York, NY Child Welfare Manual Section 7, Chapter 8: Fetal Drug Addiction Report on Patient Privacy, May 2008 Wikipedia, Search and Seizure New York Times, January 12, 1998: Clinton to Require State Efforts to Cut Drug Use in Prisons Journal of the Royal Society of Medicine Volume 84 September 1991, Pregnancy and drug addiction- long-term consequences HIPAA, Title 42 Public Health

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