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Review

Substance use during pregnancy: time for policy to catch up with research

Barry M Lester , Lynne Andreozzi and Lindsey Appiah

Brown Medical School Infant Development Center Women and Infants' Hospital and Bradley Hospital Providence, RI 02903 USA

author email corresponding author email

Harm Reduction Journal 2004, 1:5doi:10.1186/1477-7517-1-5

The electronic version of this article is the complete one and can be found online at: http://www.harmreductionjournal.com/content/1/1/5

Received:	8 February 2004
Accepted:	20 April 2004
Published:	20 April 2004

© 2004 Lester et al; licensee BioMed Central Ltd. This is an Open Access article: verbatim copying and redistribution of this article are permitted in all media for any purpose, provided this notice is preserved along with the article's original URL.

Abstract

The phenomenon of substance abuse during pregnancy has fostered much controversy, specifically regarding treatment vs. punishment. Should the pregnant mother who engages in substance abuse be viewed as a criminal or as someone suffering from an illness requiring appropriate treatment? As it happens, there is a noticeably wide range of responses to this matter in the various states of the United States, ranging from a strictly criminal perspective to one that does emphasize the importance of the mother's treatment. This diversity of dramatically different responses illustrates the failure to establish a uniform policy for the management of this phenomenon. Just as there is lack of consensus among those who favor punishment, the same lack of consensus characterizes those states espousing treatment. Several general policy recommendations are offered here addressing the critical issues. It is hoped that by focusing on these fundamental issues and ultimately detailing statistics, policymakers throughout the United States will consider the course of action that views both pregnant mother and fetus/child as humanely as possible.

Overview and nature of the problem

Introduction

The purpose of this review is to summarize policy research findings in the area of maternal prenatal substance abuse to (1) inform and advance this field, (2) identify future research needs, (3) inform policy making and (4) identify implications for policy. As a review, this is a systematic analysis of existing data (findings) on maternal drug use during pregnancy for determining the best policy among the alternatives for dealing with drug using mothers and their children. We will address issues of efficacy (which policies work?), economics (how much does it cost?) and politics (who is it for or against?). For new policies we will also consider how they fit with existing policies or laws, the social impact, ethical issues and the feasibility of implementation and administration.

The issue of substance abuse is one that has perpetually plagued society. The complexities surrounding addiction are not easily overcome. These complexities are even more defined in cases of substance abuse by pregnant women, an issue that has been pushed to the forefront of the public consciousness over the course of the past 20 years. Maternal prenatal substance abuse is defined as chronic use of alcohol and/or other drugs [1]. The acronym AOD is often used to describe the generic problem of alcohol and other drugs. However, AOD is not specific to mothers and includes both prenatal and postnatal use as well as use by men. This review will encompass the three main types of addictive substances used during pregnancy: alcohol, tobacco and illegal drugs (ATID). Maternal Alcohol, Tobacco and Illegal Drugs (MATID) will be used to describe maternal use of these substances during pregnancy that threatens the well being of the child.

Rising cocaine use and the emergence of crack cocaine use in the 1980s created a public outcry and redress and served to shine the spotlight on this issue. One of the goals of this review is to see how what we learned from the cocaine controversy can be applied to issues arising from abuse of other (legal and illegal) drugs. The review will address policies on several levels including federal, state, and local public policies. Legal and ethical issues will also be considered. As this article goes to press, the U.S. Supreme Court has declined to hear the case of a South Carolina woman convicted of murder homicide by child abuse after her stillborn baby was found with cocaine in its system. This case could have major policy implications for the treatment of drug using mothers and for the interpretation of child abuse charges.

Background

The sensationalistic coverage of the "crack epidemic" in the mid-1980s focused national attention on the relationship between drug use, and the social and economic conditions that plagued our society. These include poverty, violent crime, overcrowded prisons, hospital emergency rooms overcrowded with drug related violence and illness, homelessness and sexually transmitted diseases [2]. About 11 percent of the adult population of the United States suffers from a substance abuse problem (AOD) during the course of a year [3]. That figure increases to 28% if we include substance abuse or mental health disorders, which are often inseparable [3]. Of the 10 leading causes of disability worldwide in 1990, five were psychiatric conditions including AOD [3]. The cost to society of drug use including crime, health care and reduced work productivity was estimated at over 300 billion dollars annually [4]. In 1997, the total expenditure for treatment of substance abuse was $11.9 billion in contrast to the social costs of $294 billion estimated for that year [3]. In addition, substance abuse is a contributing factor in child abuse and neglect cases for 40% or more of the 1.2 million annual confirmed cases of child maltreatment [5] and in 40–80% of families involved with the child welfare system [6]. The presence of substance use disorders in parents increases the risk of child maltreatment threefold or more [7,8]. These children are also at substantial risk of placement in out-of-home care [9].

Drug use in this country is not a recent phenomenon. Legal use of opiates in America has a 200-year-old history and cocaine has been around since the 1870s. Illicit drug use by women is also not new. By the end of the 19^th century, almost two thirds of the nation's opium and morphine addicts were women [2]. The issue of drug use during pregnancy garnered the national spotlight starting in the 1960's when public attention began to focus on the possible harm to the unborn child. Less than 15 years after Chuck Yaeger shattered the sound barrier, several events combined to shatter the placental barrier – the notion that the fetus was protected and even invulnerable. The placental "barrier" suddenly became quite porous. The rubella (German measles) epidemic and, in particular, the tragedies caused by two drugs, thalidomide and diethylstilbestrol (DES), amplified public sentiment about the need for protecting the fetus from risks from drug use. Thalidomide was approved for marketing in 1958 and was used primarily as a sedative and antidote for nausea in early pregnancy. By 1962, evidence showed that a rare set of deformities, mostly limb malformations, were caused by the drug and 8,000 children had been affected [10]. DES was a synthetic hormone prescribed in the 1940s and 1950s to prevent miscarriage. By the late 1960s and 1970s, the side effects of the drug became known: the daughters of women who had taken DES during pregnancy developed a rare adrenocarcinoma of the vagina. Licit and illicit drugs became suspect as possible teratogens, and the activities, diet and behaviors of pregnant women have been under close scrutiny ever since [11].

As the country was coping with these events in the early 1970's, studies in the U.S. [12-14] and in France [15] began to describe the effects of fetal alcohol syndrome (FAS) including dysmorphic features, growth retardation, central nervous system problems, long term retardation and developmental delays [16]. One response was the 1989 federal law that required warnings on all alcohol-containing beverages about the risk of birth defects. Also in the 1970s, research documented child outcome associated with opiate addiction in pregnant women including withdrawal effects in infants exposed to heroin or methadone [17,18]. There is currently a resurgence of heroin use due to the introduction of a cheap, smokeable and more pure form comparable to crack cocaine but more potent.

Maternal prenatal substance abuse became an issue for public health debate in the mid-1980s when the price of cocaine dropped, and a smokeable form, "crack" became widely available. The heightened attention came in response to the emergence of a perceived crack epidemic and their infants were labeled, "crack babies" [1]. Cocaine is a special case because it riveted our attention of the problem of drug use by pregnant women, it became a moral as well as a public health issue and has forever changed the way we think about substance use by pregnant women.

Cocaine has a long history of use in this country. It was first introduced in the 1880s as a wonder drug. Doctors hailed its ability to counteract melancholy, or depression. It was made readily available to the public as a treatment for sinusitis and hay fever. It was used in soft drinks such as Coca-Cola until 1900. Upon its first introduction it was used as a panacea for all that ailed people. However by 1910 there were numerous proposals for laws against its use because of its association with violence, paranoia, and collapsed careers [19].

By 1980, the United States had entered another period of widespread use of the drug. There are several reasons why crack was very popular at the time. These reasons include the fact that it is smoked rather than injected, it was a cheap high after the 1980s cocaine price plunge, and it was conducive to binge use [20]. In 1986 the U.S. House of Representatives, Select Committee on Narcotics Abuse and Control and Select Committee on Children, Youth, and Families defined the widespread use of cocaine as a crisis. The testimony of the Honorable Charles Rangel during the committee hearing on "The Crack Cocaine Crisis" epitomized the feelings of lawmakers of the time. According to Judge Rangel, "Cocaine is threatening the vitality of the generation of Americans we are counting on to lead us into the 21^st century...The crack epidemic is part of the overall cocaine abuse problem in America. This problem will continue as long as... the Administration and State Department view the international drug problem as "business as usual." Only when we give the drug problem the foreign policy priority it deserves will we ever begin to get a handle on the cocaine crisis sweeping our nation" [21]. To this end, Congress passed the 1986 Narcotics Penalties and Enforcement Act, imposing severe penalties on any person convicted of either possessing or distributing cocaine [22].

The war(s) on dugs

There is a long history of legislative intervention and control over the use of those drugs deemed dangerous. The drug war is the name conventionally given to the efforts of the Regan and Bush administrations against the widespread availability and use of illicit drugs in the United States during the 1980's and early 1990's. It is actually the fourth such war: Sustained legislative and governmental efforts to combat drug abuse occurred in 1909–23, 1951–56 and 1971–73 [23]. The drug war has included treatment of addicts and prevention but the emphasis has been on law enforcement; control at the source, interdiction, arrest, prosecution, imprisonment and seizure of assets. Even in the 19th century the United States attempted to prevent acute poisoning by implementing regulations that called for the labeling of certain substances that might be purchased in ignorance of their lethal potential or might be too easily available for suicide. During this time, Americans bought whatever types of drugs they wanted over the counter or through mail order catalogs. Doctors regularly prescribed morphine and opium to their patients as the primary pain control drugs [22].

In response to consumer demand, Congress passed the Pure Food and Drug Act of 1906. This act mandated correct labeling. Any "patent medicine" had to reveal on the label whether it contained morphine, cocaine, cannabis, or chloral hydrate. The act simply required that consumers be informed that the drugs were present. It made no attempt to regulate the purchase of the drug or how much of the drug could be included in substances [19]. The country's drug policy changed with the 1914 passage of the Harrison Anti-Narcotic Act and with Supreme Court decisions, [24,25] which allowed new drug fighting policies. When it took effect in 1919, the law outlawed the maintenance of addicts on prescription narcotic medication. It also empowered the federal government to take nationwide action to arrest and convict health professionals who practiced maintenance of narcotic-addicted patients. A few months later in 1919, the Volstead Act widened the "no maintenance" policy to alcohol. The act made drinking alcoholic beverages illegal [22].

The emphasis on drug interdiction and policing has resulted in an increase in the national drug budget over the last 20–25 years. According to the Office of National Drug Control Policy, Federal spending on drug control has increased from 1.5 billion in 1981 to 19.2 billion in 2002 [26,27]. Since 1990 the percent of the National Drug Control Budget earmarked for prevention and treatment has remained relatively stable at approximately 33%. The funds covered by this 33% include drug abuse treatment, drug abuse prevention, and prevention research and treatment research. Approximately 10% is spent on research and approximately 1 1/2 times more is spent on drug abuse treatment than on drug abuse prevention. Treatment alone accounts for only 15% of the budget. Given that research has shown that treatment and prevention are effective, one wonders why these proportions of the National Drug Control Budget have not been increased. The drug control budget has more than doubled in the past decade, yet the proportion of the budget devoted to treatment and prevention is unchanged, despite the gains made in science.

It is also interesting to contrast Federal spending with States spending on drug abuse. A recently released study (Shoveling Up: The Impact of Substance Abuse on State Budgets), found that in 1998, states spent 81.3 billion dollars on substance abuse and addiction representing 13.1 percent of the 620 billion dollars in State spending. In contrast to the Federal budget in which 66% of the budget is spent on enforcement, the State budgets spent 38% on justice with other funds spent on education (21%), health (19.5%), child family assistance (9%) and mental health and developmental disabilities (7.5%).

Epidemiology and prevalence rates

Numerous attempts to answer the question of the prevalence of prenatal exposure have been made reflecting a variety of definitions, sampling procedures and drug use detection procedures [11]. Settings vary and include hospitals, public health clinics and prenatal practices. Sampling includes the country as a whole, entire states as well as individual counties. Drug use is typically detected by maternal report, history or urine testing. The National Pregnancy and Health Survey (NPHS) was designed to provide a nationally representative sample of live births in the contiguous 48 states between November 1992 and August 1993 based on maternal self-report [28]. The prevalence for use of any illicit drug during pregnancy was 5.5% or approximately 221,000 pregnant women. For cocaine the estimate was 1.1% (45,000). Comparisons of self-report and urine in a subset of this sample suggested underreporting in the use of cocaine.

The National Household Survey on Drug Abuse (NHSDA) contains 1999 national estimates ages 12 years and older based on interviews with 66,706 persons. The NHSDA estimated that among women 15 to 44 years old, rates of current use of alcohol, tobacco and illicit drugs 1999 were 47.8%, 31%, and 7.9%, respectively. Table 1 compares drug use between pregnant and non-pregnant women.

Among pregnant women 15–44 years of age, 3.4% reported using illicit drugs. This was significantly lower than the rate among non-pregnant women age 15–44 years (8.1%). For example, cocaine is .2% for pregnant but .9% for non-pregnant. Methamphetamine is scary because it is the only illicit drug that does not have a lower rate for pregnant (.2%) than for non-pregnant women (.2%) [11]. For pregnant women in the 15–44 age group, 3.4%, 17.6%, and 13.8%, respectively, used illicit drugs, tobacco, and alcohol, indicating that a large number of women continued their substance use during pregnancy. In the United States in 1999, there were 3,944,450 births to women aged 15 to 44 years [11]. Using NHSDA estimates of substance use during pregnancy, the approximate numbers of births in 1999 complicated by maternal use of illicit drugs, tobacco, and alcohol were 134,110; 694,220; and 544,330, respectively [29]. Thus, from the public health perspective, the impact of substance use during pregnancy extends far beyond maternal health to that of a large number of the unborn population.

There is also overlap between licit and illicit drugs. Approximately 32% of women who use illicit drugs during pregnancy also use alcohol and cigarettes [30]. From these estimates it has been suggested that approximately 1 million children each year are exposed to legal or illegal substances (i.e. MATID) during gestation [31]. It is also important to point out that the NHSDA is based on self-report of drug use and therefore likely to underestimate the extent of prenatal drug exposure. Just as with other drugs, it is very difficult to isolate the true prevalence of prenatal cocaine use among pregnant women because prevalence rates are often dependent on self-reporting by the women. In a study by Vega and colleagues in the early 1990s, it was discovered that 1.1 percent of California expectant mothers used cocaine within 12 to 72 hours of labor and delivery [32]. The lack of true prevalence rates can also be attributed to the lack of focus on those groups that are considered to be "low-risk" for drug use, e.g. middle class, non-minority populations.

There are groups considered high risk based upon patterns of use. Cocaine use is especially concentrated among poor women of color. In the Vega et al. [32] study, it was found that 7.8 percent of African Americans compared with 0.55 percent of Hispanics and 0.60 percent of Caucasians tested positive for cocaine use. This figure became even more pronounced when looking at subgroups of poor women. Nearly 1/3 of unmarried pregnant African American Medicaid recipients in their mid-thirties tested positive for cocaine [33].

Methods of identification of drug using women

The accurate identification of prenatal drug exposure is important not only to understand the nature and magnitude of the problem, but also to determine appropriate medical and psychosocial intervention. The prevalence of prenatal drug exposure is very difficult to estimate because of flaws in all methods of identification. Methods vary and include interview, self-administered questionnaires, intake history, urine testing of mother and infant, testing of infant hair and meconium (first stool of the newborn). Maternal self-report of drug use is problematic because of the fear of the consequences of admitting to the use of drugs such as Child Protective Services (CPS) involvement and the threat of child removal, or because it is socially unacceptable. Self-report is also unreliable because of the inaccuracy of recall, especially when questions such as "when", "how often" and "how much" are asked. Under-reporting of drug use by pregnant women has been reported in several studies [34-37]. In a sample in which 43% of mothers were positive for illegal drugs during pregnancy, only 11% admitted illegal drug use [35]. Frank found that self-report misclassified 24% of cocaine users identified by urine toxicology, and in Lester et al, [34] 38% of mothers denied cocaine or opiate use during pregnancy but the infant's meconium was positive.

Infant biomarkers of in-utero exposure to illegal and legal drugs including cocaine, opiates, amphetamines, marijuana and nicotine, are available from different specimens. Although urine has been the widely used specimen, increasing evidence suggests that meconium is preferable [35,38-44]. For example, cocaine metabolites are measurable in urine for only 96–120 hours after the last cocaine use in contrast to meconium, which can detect cocaine use throughout the second half of pregnancy. The primary metabolite of nicotine is cotinine and can be measured in urine and meconium. Cotinine is also readily passed from mother to infant, with fetal cotinine concentrations in pregnant smokers reaching approximately 90% of maternal values during pregnancy [45]. A recent assay has been developed for detecting alcohol in meconium using fatty acid ethyl esters [46]. Hair analysis can also be used to detect drugs, and like meconium has the advantage of reflecting more than recent use [47].

In addition to the choice of specimen, the accurate detection of prenatal drug exposure is influenced by the choice of initial screening test and use of a confirmation procedure. Moore et al. [48] found a 43% false positive rate for cocaine when screens were used without confirmation. Gas chromatography/mass spectrometry (GC/MS) is the forensic standard for confirmation of presumptive positive screens. Lester et al. [34] confirmed 75% of presumptive positive screens for cocaine using GC/MS in a sample of over 8,500. However, that still leaves 25% of mothers that would have incorrectly identified had we relied on a screen alone. Choice of metabolites can also affect accuracy of identification. We [34] used four metabolites for cocaine, and one of them, HBE, was the only metabolite found in 235 of the cases. Finally, some drugs are more difficult to detect than others. Even with GC/MS we were only able to confirm 36% of the presumptive positives for marijuana.

The advantage of using both drug toxicology and maternal self-report has been shown in several studies [34,35,37,49,50]. It is also important to distinguish between maternal reports based on a structured questionnaire and information collected about the mother from medical record review as the latter is less reliable, and may not be appropriate for comparison with toxicology results. The importance of using both a biomarker (preferably meconium) and maternal self-report is to identify mothers who deny use but did use as evidence by positive GC/MS confirmation. It is generally assumed that mothers will not report that they used drugs if they did not. Finally, it would not be wise to rely only on meconium, as this assay is only valid for the second half of pregnancy. Agreement between positive maternal report and positive toxicology has been reported at 66% [34,51]. This is to be expected because infants of mothers who report that they used cocaine, but not in the second half of pregnancy, will have a negative meconium for appropriate reasons.

Research on prenatal MATID exposure and child outcome

MATID use during pregnancy is a major public health issue and a social policy concern because of the possible adverse effect or harm to the developing child caused by the chemical effect of the drug, i.e., the drug as a toxin. The best documentation of this effect is for alcohol. The teratogenic effects of alcohol are well established. The brain is particularly vulnerable with documented sites of damage including the cerebellum, hippocampus, basal ganglia and corpus collosum [52-54]. One study estimated that approximately 2.6 million women of 4 million who give birth each year use alcohol at some point during their pregnancy [3]. Another suggested that nearly 22,000 school age children per year experience adverse affects caused by their mother's alcohol use [55]. One of the most widely chronicled problems attributed to alcohol use is fetal alcohol syndrome (FAS). FAS was first described in the published medical literature in 1968 and refers to a constellation of physical abnormalities. FAS produces slow growth, damage to the nervous system, facial abnormalities and mental retardation. It is most obvious in the features of the face and in the reduced size of the newborn, and in problems of behavior and cognition in children born to mothers who drank heavily during pregnancy. Rates of FAS range from .5 to 3 cases per 1,000 births or 2000 – 12,000 per year in the U.S.

FAS is caused by prenatal exposure to high levels of alcohol; however, the definition of "high" is not specific. For example, the Institute of Medicine (IOM) definition includes terms such as "substantial, regular intake or heavy episodic drinking" as well as associated alcohol related effects, behaviors and problems but these terms are not defined. Heavy drinking by pregnant women has been estimated at less than 1%. (IOM).

In addition to FAS, there are children who do not show the facial dysmorphology of FAS but who do show deficits on a wide variety of neurobehavioral measures. Different labels have been used to describe this heterogeneous group including fetal alcohol effects (FAE) and alcohol-related neuro-developmental disabilities (ARND). ARND/FAE may reflect more moderate levels of alcohol exposure as well as some degree of uncertainly about whether alcohol or other factors was the causal agent (IOM). Alcohol has the potential to produce milder problems such as mental and behavioral problems as well [56] and these may also be due to FAE/ARND.

The IOM report concludes that FAS is arguably the most common known non-genetic cause of mental retardation. They also conclude that FAS and ARND are a completely preventable set of birth defects and neurodevelopmental abnormalities. We would argue that the latter is true for the consequences of tobacco and illegal drugs as well.

Tobacco is another legal drug that can have adverse effects on fetuses. Cigarette smoking is the largest single risk factor for premature death among adults in developed countries, causing over 500,000 deaths per year, or one in every 5 deaths. Currently, there are 57 million cigarette smokers in the United States – roughly one quarter of the adult population. The majority of smokers fall between 18 – 25 years of age; 37% of people in this age range are smokers [57,58]. Cigarette smoking is correlated with low socio-economic status, reduced educational achievement, and disadvantaged neighborhood environment, as well as younger age [58].

Approximately 12.3% of all mothers report cigarette smoking while pregnant [59]. Cigarette smoke is a complex mixture of chemicals [60] with approximately 4000 compounds, [61] including carbon monoxide, that may also affect the fetus. Maternal smoking during pregnancy produces adverse effects for the fetus through several pathways. First, cigarette smoke interferes with normal placental function. As metabolites of cigarette smoke pass through the placenta from mother to fetus, they act as vasoconstrictors to reduce uterine blood flow by up to 38% [62]. The fetus is deprived of nutrients and oxygen, resulting in episodic fetal hypoxia-ischemia and malnutrition [63]. This is the basis for the fetal intrauterine growth retardation seen in many infants born to smoking mothers. Studies have shown that smoking is responsible for 20–30% of all infants of low birthweight, and that infants born to smoking mothers weigh an average 150–250 grams less than infants born to nonsmoking mothers [64].

Second, the nicotine in cigarette smoke acts as a neuroteratogen that interferes with fetal development, specifically the developing nervous system [65]. In utero, nicotine targets nicotinic acetylcholine receptors in the fetal brain to change the pattern of cell proliferation and differentiation. Fetal nicotine exposure up-regulates nicotinic cholinergic receptor binding sites, causing abnormalities in the development of synaptic activity [66]. The end result is cell loss and ultimately, neuronal damage. Furthermore, because concentrations of nicotine on the fetal side of the placenta generally reach levels 15% higher than maternal levels, even low levels of cigarette smoking may expose the fetus to harmful amounts of nicotine [67,68]. As preclinical studies have shown, fetal doses of nicotine that do not result in low birthweight still produce deficits in fetal brain development [65]. Cigarettes contain many hazardous toxic chemicals, including nicotine, hydrogen cyanide, and carbon monoxide. Ingestion of these harmful toxins into the fetal blood supply can cause problems in newborns such as low birth weight, pre-term delivery, slow fetal development, and infant mortality [69-71]. Although the effects of cigarette smoking on fetal growth retardation have been known for many years, more recent work has linked prenatal nicotine exposure to sudden infant death syndrome as well as short and longer term behavioral and cognitive problems [72-77] including effects on IQ [78]. In a recent study, we [79] found a dose response relationship between cotinine (the major metabolite of nicotine) in the mothers saliva at delivery and the neurobehavior of the newborn suggesting possible withdrawal effects from cigarette smoking during pregnancy. In addition, the effects were observed at less than 7 cigarettes per day, which is below the threshold of 10 cigarettes per day typically reported for the effects on birth weight. In another study, maternal genotype was found to alter the effect of smoking on infant birthweight [80]. This could suggest that genetic influences may also explain why some nicotine exposed infants show neurobehavioral deficits while others do not.

In addition to these prenatal mechanisms there are postnatal mechanisms through which smoking can affect the child. These include research on the transmission of nicotine through breast milk and its harmful effects, and the consequences of second-hand smoke exposure on children [46,81,82]. The toxic effects of tobacco are illustrated by a study in which infants of nonsmoking mothers who had environmental exposure to tobacco smoke showed measurable ill effects [83].

It is positive to note that tobacco use during pregnancy is on the decline. In 1990 18.4% of pregnant women smoked (that would result in 736,000 tobacco-exposed infants); that percent was 13.6% (or 544,000 tobacco exposed infants) in 1996. Women who do still smoke are smoking fewer cigarettes than they did in 1990 [84]. These trends underscore the importance of smoking cessation programs, particularly for women of childbearing age. At this opportune time in which the harmful effects of cigarette smoke have been subjected to increasing scrutiny, efforts aimed at smoking cessation and addiction treatment, as well as studies directed at understanding the effects of prenatal exposure to nicotine on infants have definitive relevance in advancing the health and development of children.

Illicit drugs are the most often targeted drugs in the fight against maternal substance abuse, because they are perceived to produce the most harmful side effects in both the mothers and the children. Whether this is true or not is a topic that is certainly up for debate. As mentioned earlier, it is hard to pinpoint the exact prevalence of illegal drug use among pregnant women because figures are derived from self-reporting by the women or reporting by a physician. Figures on the frequency of illegal drug use among pregnant women range from 221,000 to 739,006 [85,86]. There are numerous birth complications attributed to illegal drug use, including pre-term delivery, low birth weight, smaller-than-normal head size, miscarriages, genital and urinary tract deformities, and nervous system damage [87].

For cocaine, we now know that early scientific reports were exaggerated, and portrayed children who were exposed to cocaine in utero as irreparably doomed and damaged [29,88-90]. Published studies on cocaine-exposed children suggest a pattern of small deficits in intelligence and moderate deficits in language [91]. Further, cocaine-exposed children at 6 years show deficits in academic skills including poor sustained attention, more disorganization, and less abstract thinking [92-94].

Research on prenatal marijuana exposure started slightly before the explosion of cocaine research in the 1980s. Developmental effects on executive function have been reported in a study of 9–12 year olds [78]. However, despite the fact that marijuana is the most frequently abused illegal drug, it has not received the attention, as have other drugs, and there are calls for legalization and approval for medicinal use. Finally, it has been only recently that amphetamine/methamphetamine use during pregnancy has drawn attention. Longitudinal studies of development in methamphetamine-exposed children are just beginning [95].

A lingering puzzle, especially with the cocaine literature, is the discrepancy between preclinical (animal) and clinical (human) studies. There is substantial preclinical evidence that cocaine and other drugs of abuse are neuroteratogens that can produce serious abnormalities in brain development. More recent findings [96] suggest that the behavioral impact of such neural abnormalities that might occur in humans depends on other complex pre- and postnatal factors, which may also include genetic vulnerability. We have seen how public understanding of the impact of prenatal exposure has lurched from an initial over-reaction in which drug-exposed children were characterized as irrevocably and irreversibly damaged to a perhaps equally premature excessive "sigh of relief" that drugs such as cocaine do not have lasting effects, especially if children are raised in appropriate environments. Exaggerated statements about the benign effects of cocaine as found in Frank et al. [97] can have negative policy implications. Infants exposed to drugs in utero may have a milder phenotype with appropriate environment input. We need to understand combinations of biological (including genetic) predispositions and environmental conditions that result in normal development and what specific factors might promote resilience. This will require changing some of our models for studying the effects of MATID.

Developmental model

Most studies of MATID use and child developmental outcome follow the behavioral teratology model. The goal is to isolate the unique effects of the drug, typically by controlling other variables that could also explain child outcome [98,99]. This approach is based on our understanding of the mechanisms of action of ATID, as well as on preclinical and clinical studies, and enables us to study the potential pharmacological and toxic effects of the drugs per se. The limitation of this approach is that it does not lend itself to study drug exposure as part of a developmental model in which the goal is to predict child outcome with ATID as one of many contributing factors. This is because behavioral teratology research designs typically treat environmental variables as potential confounding factors rather than as a primary focus for investigation [100]. Developmental-ecological models have shown that many, if not most, child outcomes are due to multiple antecedent variables [101].

Developmental models should also take into account the effects of polydrug exposure. Adverse MATID effects are thought to be due to mechanisms by which the drugs disrupt programs for brain development associated with alterations in brain structure and neuronal function that have unique behavioral consequences. ATID freely cross the placenta and the developing fetal brain. Typically we think about the specific or individual effects of each drug, ethanol and the GABA system, nicotine effects on acetylcholine, opiates and the μ, δ, and κ receptors, and the effects of cocaine on DA, NE, 5-HT. However, in addition to these mechanisms specific to each drug, recent literature suggests a mechanism of action common to all drugs of abuse. Every drug of abuse appears to increase the levels of the neurotransmitter dopamine in the brain pathways that control pleasure. This explanation centers on activation of specific neural pathways that project from the pons and midbrain to more rostral forebrain regions, including the amygdala, medial prefrontal cortex, anterior cingulate cortex, ventral palladium, and subdivisions of the striatum, particularity the nucleus accumbens [102]. This model of a final common pathway for all drugs of abuse is critical because, as documented earlier, most prenatal drug use is polydrug use. Therefore, understanding these potential pathways will give us one model for understanding the developmental effects of polydrug use.

Theoretically, we can describe three types of consequences of MATID on child development (1) immediate drug effects (2) latent drug effects, and (3) postnatal environment effects as shown in Figure 1.

Immediate drug effects are direct teratogenic consequences of MATID exposure and emerge during the first year before postnatal environmental effects become salient. These effects may be transient, such as catch-up in physical growth or more long lasting, such as behavioral disregulation that is observed in infancy and persists through school age. Latent drug effects are also direct teratogenic effects but reflect brain function that becomes relevant later in development. There are two kinds of latent effects. First, MATID can affect brain function that does not manifest until children are older, including cognitive processes (I.Q., language, executive function and academic skills), antisocial behavior (conduct disorder [CD], oppositional defiant disorder [ODD], delinquency, and externalizing and aggressive behavior problems), substance use onset, psychopathology (attention deficit disorder [ADD], attention deficit hyperactivity disorder [ADHD], internalizing behavior, depression, and anxiety). Second, MATID affects the brain by causing a predisposition for dependence on drugs. By "predisposition" we mean an increase in risk that requires other conditions to be met. These conditions would be activated during school age when opportunities to use drugs arise, leading to early substance use onset.

There is also evidence from the nicotine and alcohol literature for the biological basis of drug use in children, such that adolescent or childhood onset of substance use is related to prenatal exposure. Adolescents are more likely to smoke if their mothers smoked during pregnancy even after controlling for later maternal smoking [103-105]. Similar results have been reported for alcohol [106]. In two cohorts Kandel [103] found that adolescent girls are more likely to smoke if their mothers smoked during pregnancy even after controlling for postnatal maternal smoking. It was suggested that nicotine input to the dopaminergic system could predispose the brain to later addictive behavior. Therefore, prenatal exposure may be related to increased risk of substance abuse in the offspring. More recently, Weissman [107] found a 4-fold increase of prepubertal-onset CD in boys and a 5-fold increased risk of adolescent onset drug dependence in girls whose mothers smoked during pregnancy, also unrelated to postnatal maternal smoking. Maternal smoking during pregnancy has also been related to increased ADHD [108] and CD in boys [109]. In a 14-year follow-up, [106] prenatal alcohol exposure was more predictive of adolescent alcohol use and its negative consequences than was family history of alcohol problems. Moderate to heavy maternal drinking during pregnancy was related to current drinking in daughters after controlling for current maternal drinking and child rearing practices. Prenatal maternal smoking was also related to elevated rates of adolescent drinking [110]. Therefore, drug exposure in utero may alter the brain in ways that increase the risk for later addiction.

Postnatal environment effects include general environmental factors (socio-demographics, care giving context and style, and caregiver characteristics) that include both risk and protective factors. Environmental risk factors are well established correlates of a variety of poor child outcomes including cognitive, social, psychological, school, and health problems that occur in both drug-using and non-drug using populations. MATID is associated with general psychosocial risk factors that compromise child outcome apart from substance abuse issues including poverty, [111,112] chaotic and dangerous lifestyles, [113,114] symptoms of psychopathology, [115-119] history of childhood sexual abuse, [120,121] and involvement in difficult or abusive relationships with male partners [122,123]. Pregnant women in substance abuse treatment show a high incidence of psychopathology [124] including affective and personality disorders [125,126] and depressive symptoms [127,128]. Pregnant cocaine using women showed elevated levels of depression, general mental distress and more psychological symptoms postpartum [129]. There are also specific aspects of the caregiving environment unique to AOD using mothers analogous to the well-documented literature on "children of alcoholics" (COAs). Passive exposure to smoke is also a direct teratogenic effect that is also part of the environment [78].

Another problem with the behavioral teratology model is that as a deficit model it does not include protective or resiliency factors that buffer the child against adverse child outcome. Resiliency factors can be biological (such as self-righting, compensatory brain mechanism that may be genetically based) as well as factors such as stable temperament, high motivation, connectedness to parents/others, consistent parental supervision and discipline, relationship to prosocial institutions, intolerant attitudes toward deviance, peers with anti-drug attitudes and community anti-drug norms. Connectedness to others and intolerance of attitudes toward deviance were also highlighted by the Surgeon General Report [130] on youth violence.

Finally, the model includes the "development" arrow to indicate that development is a dynamic process. Nature and nurture are not viewed as static "either/or" categories. Rather there are reciprocal causal relations between intra- and extra-individual factors that change over the course of development.

We can say unequivocally that some children exposed to drugs in utero have learning and behavioral problems. Clearly in the case of cocaine the problem is not as severe as was once feared. We also know that environmental factors play a large role in determining the development of drug-exposed children. There is increasing evidence that amount of exposure makes a difference. This is well established for alcohol, for tobacco with respect to effects on birthweight, and the cocaine literature is just starting to study level of exposure. There is also some evidence that timing of exposure makes a difference, again especially for alcohol. Not all children who are exposed to drugs in utero show neurobehavioral deficits and those who are affected display a wide range of neurobehavioral effects. The same drug, even at the same dose does not appear to produce the same deficits in all children.

It is almost superfluous to say that advances over the coming years will provide a much clearer picture and deeper understanding of the long-term effects of prenatal drug exposure. However, it is not superfluous to say that the data available today indicate that society must take the problems of substance abuse during pregnancy very seriously. Priority must be given to programs that help addicted pregnant women avoid drugs and to programs that provide postnatal intervention. We know that prevention and treatment programs are effective. We do not know which are most effective. With limited resources, clinical trials are necessary, and well-tested programs with fidelity should be adopted.

We don't have (and we may never have) the complete scientific picture. What we do have is enough information to make it a priority to identity and treat drug-using pregnant women and their children. We do know enough to provide an "antidote to complacency" [131].

There are important limitations to the research on the developmental consequences of MATID that have policy implications. First, our knowledge of use patterns (how much, when and how often during pregnancy drugs are used) is limited by reliance on self-report (including both problems associated with memory and reluctance to reveal drug use due to fear of prosecution and child removal), and limitations of drug toxicology (including no bioassay for alcohol). Second, it is not clear whom we are studying, that is, to what population the developmental effects of MATID generalize. For example, most women in the cocaine studies are recreational users; they are not "hard core" addicts. In the cocaine literature, a "heavy" use is defined as three or more times per week during the first trimester. This definition is a function of the patterns of use detected in the studies and is in sharp contrast to the heroin addict or methadone user where use is daily for the entire pregnancy. One reason that the developmental effects of cigarette smoking may be as strong as the effects of cocaine is that the use patterns of women who smoke cigarettes during pregnancy are closer to those of narcotics than cocaine – daily use throughout pregnancy. The severity of the effects of the drug is one important factor, as is the pattern of use.

Third, and related to the previous issue is that we know little about dose response relationships between MATID and developmental outcome. There is some evidence for thresholds in the literature (10 cigarettes/day, .5 oz alcohol/day, three days/week cocaine during the first trimester) but the developmental effects of these thresholds have not been well established. Fourth, there is virtually no information on polydrug effects, yet polydrug use is more common than single drug use. Little is known about the pharmacology of polydrug use, such as how drug interactions affect fetal development. Although the final common pathway model involving the dopaminergic system is attractive it has not been empirically applied to the child development literature. Fifth, although there are hundreds of published developmental studies, there are relatively few long-term outcome studies, and methodological problems make interpretation difficult. Alcohol effects, especially FAS and COA, are well established but, for example, untangling prenatal MATID use from postnatal environmental (including parenting) effects on developmental outcome is still problematic. Sixth, there is the uncomfortable problem of effect size. Other than FAS, the literature does not show a devastating pattern of developmental effects. This is fortunate for the many children in society affected but has left researchers in a quandary with respect to how to interpret these effects for the public. The research typically addresses the question of whether or not there is an association between variables; such as drug exposure and child outcome. The issue of whether or not the association is of practical importance, i.e., clinically significant, is often not addressed, however, this issue is critical for policymakers. For example, in our multisite study of prenatal cocaine exposure with 8600 subjects we did find increased medical problems, however, the prevalence rates were low, raising issues as to the clinical significance of the findings [90]. Most findings are presented in terms of tests of statistical inference (p value). Effect size (size of the estimate in standard units) is usually not presented. The practical importance of an effect is dependent on two contexts, scientific and empirical [132]. The scientific context refers to the fact that, ideally, policy decisions would be data-based. However, data, i.e., effect size is constrained or decreased by problems in measurement, design and methods. In other words, measured effects are likely to be small due to methodological limitations. The empirical context refers to the fact that results need to be evaluated in the context of the existing empirical literature. Meta-analysis is a useful tool for this [132]. For example, using meta-analysis, we were able to show that the effect sizes of prenatal cocaine exposure on IQ and language when children reach school age range from .33–.71. Our findings [133] from the Maternal Lifestyle Study of prenatal cocaine exposure and child outcome showed that the effects of cocaine on IQ actually increased over time from 1.5 in infancy to 3.5 IQ points at age 7. If this pattern continues, the deficit will be 7.6 IQ points at age 11. We also found that children in the cocaine exposed group are more than 1 1/5 times more likely to qualify for special education services than children in the unexposed group.

The question that the scientific community and policy makers have not come to grips with is how to interpret more subtle effects: what are clinically significant (as opposed to statistically significant) effects and how do these effects impact policy including treatment programs? There are tough questions to answer. If a study does show a MATID effect, how many children are affected, what is the magnitude of the effect and what does it mean? Lastly, as mentioned earlier, and related to the previous issue, developmental MATID effects must be understood in the context of the child's overall development. This means understanding protective and resiliency factors as well as risk factors, and viewing drugs as one of a number of events that will determine the developmental outcome of the child. This will help enable us to develop interventions designed to minimize risk factors and maximize protective factors.

Policy options

Importance of context

Context is always important for social policy, but in the case of drug abuse during pregnancy, context is important in several different ways. First, policy is, by definition, dependent on social context. As was clear from our historical review, the social context for prenatal drug exposure changed dramatically in the mid-1980's with the crack epidemic. Social consternation with the high level of use by pregnant women centered on consequences for the children and then shifted to the fetus. Once the fetus became the central protagonist there was a significant shift in social perception. The concept of harming the fetus by using drugs during pregnancy resulted in sanctions by both the criminal justice system and the child protective system.

Second, existing policies have been made in a climate of scientific uncertainly about the effects of prenatal drug exposure. Policies looking for a "quick fix" have taken a linear approach by focusing on the single risk factor of prenatal drug exposure as the explanation for the outcomes of these children. However, as we will show later, there is a wide variation in the developmental outcome of these children, and the determinants of development in these children are multifaceted and complex. Drug effects must be understood in the context in which the child develops. Parenting and other environmental factors in addition to drugs are responsible for the outcome of these children. Poverty (which can be a proxy for an inadequate environment) affects IQ without drugs. The combination of drugs and poverty can be a "double whammy" and put children at extreme disadvantage [91]. Policy must take into account the fact that biological vulnerability and environmental factors interact to determine the outcome of these children, and this is a dynamic process [134].

Third, context is also important because social policy in this area brings up many ethical dilemmas. In the "real world," drug-using pregnant women are mostly poor and minority. The social policy context for these women includes dramatic reductions in services and access to legal recourse. In the real world, child rearing is also affected by context, including culture. Drug-using mothers may want "the best" for their children, but what they mean by "best" will be influenced by their context, experience and belief systems and may differ from what the experts mean by "best." And "best" needs to be weighted against the alternative. Foster placement, especially multiple foster placements, is not necessarily a better alternative for the child. Pragmatic recognition of how these women are treated by policies is necessary to enlarge the frame and alter the construction of the problem.

Fourth, to say that policy is dependent on social context also means that policy is shaped by public perception and attitudes. One of the consequences of shattering the placental barrier, triggered primarily in response to the use of cocaine by pregnant women in the 1980s, has been two parallel sets of attitudes towards drug use during pregnancy resulting in two parallel sets of policy responses. One approach is to view drug abuse as a mental health/medical illness. Advocates of this approach recommend policy that emphasizes treatment and prevention including reproductive health care, therapy for past abuse and for parent child relationships. The other approach is punitive and views drug-using women as criminals and as irresponsible ("how could they do this to their babies?"). This approach translates into sanctions within both the criminal justice system and the child protection system. The new twist was the construct of harming the fetus by using drugs. The cocaine problem shone the spotlight on this issue and it has now intensified concern about other drugs as well including marijuana, alcohol and tobacco. For example, if "harm" to the fetus is no worse for cocaine than it is for legal substances such as tobacco and alcohol, should the same criminal and treatment policies apply for use of all these substances? It is important to point out that for many advocates of the sanction approach, treatment is included. The two approaches may not agree on issues such as the nature of addiction, autonomy of the pregnant woman, status of the fetus, and utility of punitive measures; they do agree that treatment is an essential component of the policy response [135].

Views of addiction

There is much societal debate on what should be the appropriate response to maternal substance abuse during pregnancy. One reason for the ongoing controversy is tied to the conflicting views of addiction, and again an historical perspective is useful. Society's approach to substance use has changed markedly over the decades from being viewed as an individual problem for which society has no responsibility to a major social problem that must be addressed by the mental health, medical and criminal justice systems. For example, fifty years ago, a person seeking help for a serious alcohol or drug problem would have been treated for months in a psychiatric hospital diagnosed using the American Psychiatric Association's Greybook (APA 1942) as a character disorder along with stuttering and bed wetting. Today people with substance abuse disorder have a better chance of being identified and finding support and/or being required by the criminal justice system to undergo treatment. Alcohol and Drug Abuse are now distinct psychiatric (DSM-IV) disorders; treatment is specialized and more often outpatient.

Today this issue tends to get polarized, especially when it comes to pregnant women. There is the liberal perspective of drug abuse that calls on people to look at drug use as a public health problem requiring compassion and understanding. To deal with drug use during pregnancy in a harsh way would be unconstitutional, misogynistic, and ineffective [70]. From this perspective, drug use during pregnancy must be treated in the same manner as depression or other mental illness. It has also been suggested that not only is it ineffective to treat drug and alcohol addiction as a criminal act, but it is also a punitive approach that is akin to criminalizing mental illness [136,137]. The opposing conservative view of drug use during pregnancy is that it is a voluntary and illegal act that requires significant neglect of the rights of the fetus. From this view women who use drugs during their pregnancy are willfully committing a criminal act, deserving a legal response [138].

While the pendulum has swung back and forth between viewing addiction as a medical problem or viewing it as a criminal problem, the highest levels of the judicial system have made their perspective clear. As early as 1925, the United States Supreme Court recognized addiction to be a disease. In the Linder decision, the justices state, "...addicts...are diseased and proper subjects for such (medical) treatments" [139]. The Court reaffirmed this opinion in the 1962 decision in the case of Robinson v. California. The Court stated, "...It is unlikely that any state at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease...in light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments...the prosecution is aimed at penalizing an illness, rather than providing medical care for it. We would forget the teachings of the Eighth Amendment if we allowed sickness to be made a crime and permitted sick people to be punished for being sick..."

From a medical perspective addiction is a chronic disease [140-143]. A medical dictionary defines disease as: "any deviation from or interruption of the normal structure or function of any part of an organ or system (or combination thereof) of the body that is manifested by a characteristic set of symptoms and signs, whose etiology, pathology and prognosis may be known or unknown." The vagueness of this definition illustrates the broad range of conditions that are called disease, and also that whether or not a particular condition is called a disease could be due to cultural consensus as much as medical factors. This social stigma probably plays a major role in addiction not being viewed as a disease.

Prosecution and state statutes

There are many different reasons why state legislatures have taken an interest in addressing the problem of substance abuse by pregnant women. One reason is the basic notion that the state has an obligation to provide for the welfare of its citizens. It is also of financial importance to the state to address the issue [144]. Immediate effects of MATID use include pregnancy complications as well as health issues for the newborn, driving up the amount of money that the state must spend on obstetrical and neonatal care. This is not where the cost of maternal drug use ends for the state. After birth, children born to mothers who used substances during pregnancy are at a higher risk of neglect, abuse, and abandonment, thus requiring the intervention of child protective services or juvenile courts at further cost to the states [145]. First year costs to states of births affected by maternal substance use can be as high as $50,000 each above the cost of "usual" births. State expenses for public assistance and foster care for each year after the first can be as high as $20,000 [146].

The costs to the state coupled with media attention as a result of the "crack baby" epidemic of the 1980s, forced states to respond. Most often the response came in the form of legislation [147]. Many different types of bills were introduced in an attempt to combat the problem on many different fronts and levels. Some bills addressed the roles of health professionals; specifically, these bills often required doctors to report incidents of maternal substance abuse to the proper authorities; others required social service agencies to assess families affected by alcohol or drugs for abuse and neglect; and other bills introduced the requirement of commercial vendors who sell alcohol and tobacco to post warnings about the effects of these substances on pregnant women [148].

State approaches to maternal substance use

States have employed a wide variety of strategies to combat maternal perinatal alcohol and drug use. Due to the public's outcry for an answer to the problem of "crack babies" and other drug-exposed infants, the courts implemented policies and practices that emphasized personal responsibility and punishment [1]. User accountability was stated as the basis for most drug control policies. User accountability was based on the idea that if there were no drug users, there would be no drug problems, and that users were responsible for creating the demand that made trafficking a lucrative criminal enterprise [149]. Of course, our cultural penchant for punishment and criminalization may have played a role in justifying these policies.

Since there were not, and still are not, any statutes on the books specifically criminalizing drug use during pregnancy, women have been prosecuted under statutes that deal with child abuse, assault, murder, or drug dealing [150]. One of the newest attempts in prosecuting women is using statutes related to the delivery of drugs to a minor. However, it is much more difficult to convince a judge and jury of prosecuting on these grounds because there is no explicit language in any statute delineating that a fetus can be considered a minor, entitled to all the rights and privileges afforded thereto [151,152].

Prosecutorial strategies

Since 1985, approximately 240 women in thirty states have been criminally prosecuted in relation to their use of drugs during pregnancy [71]. State supreme courts have overturned nearly all these convictions. Prosecutorial attempts fall under a few general types of criminal statutes. There are statutes that deal with the delivery of a controlled substance to a minor, statutes that attempt to hold mothers who use drugs accountable under child abuse statutes, those that charge mothers with manslaughter should the baby die, and those related to involuntary detention and treatment of the mother [153].

Delivery of a controlled substance to a minor

In light of the lack of specific criminal statues applying to maternal substance abuse during pregnancy, state prosecutors have come up with creative ways of dealing with the issue. One such creative method is prosecuting under statutes that govern the delivery of a controlled substance to a minor. Prosecutions in these cases focus on the minute after birth before the umbilical cord is cut. At that moment the child is fully born, and thus a person under the Fourteenth Amendment entitled to full and equal protection under the law. At the same time the child is still attached to the mother and could possibly be receiving drugs through the bloodstream [20,153,154].

Arguably the most renowned case prosecuted in this manner is that of Florida v. Johnson [155]. Jennifer Johnson was convicted in Seminole County, Florida of delivering a controlled substance to her baby through the umbilical cord after birth. The conviction came after hospital officials discovered that her two children had positive toxicology results for cocaine following birth. Johnson also admitted to smoking crack cocaine three to four times every other day throughout the course of her pregnancy. Johnson was convicted and sentenced to 15 years probation. In 1992, the Florida Supreme Court overturned her conviction on the basis that the statute was not meant to apply to the delivery of controlled substances through the umbilical cord (Florida Supreme Court, 1992).

Child abuse

The most common strategy employed is charging pregnant drug users with child abuse and/or neglect. The challenge facing prosecutors is finding a way to convince the court that an unborn child falls under the legal definition of "child" and thus deserves protection [153,156]. The earliest prosecution using child abuse and neglect statutes was the 1977 case of Reyes v. California. In this case the mother gave birth to heroin-addicted twins. Ms. Reyes was convicted under child endangerment laws. However, the conviction was overturned and the case dismissed by the appellate courts on the grounds that child endangerment laws were never intended by the legislature to apply to fetuses. Thus in the eyes of the law a fetus was not really considered a child [157].

Cases tried using abuse and neglect statutes revolve around the central issues of whether or not the fetus can be considered a "child" in the eyes of the law, and whether or not the behavior of the mother prior to the birth of the child can be considered viable criteria for judging whether abuse or neglect has occurred. Even given these issues, many convictions have been obtained using these statutes. While convictions under these statutes have been overturned in higher courts of appeal, the high courts have also suggested that states take the initiative to pass pieces of legislation that specify prenatal maternal conduct as admissible in establishing abuse, or legislation that establishes the personhood of the fetus [149,150].

Manslaughter

Another form of prosecutorial strategy that states may employ is charging the pregnant drug user with manslaughter. Manslaughter statutes are difficult to apply to the cases of pregnant women because the statutes were intended for third party criminal culpability. This means that manslaughter laws were originally intended to cover the death of a baby as the result of the actions of a third party [153,157,158]. An example of this is the Florida criminal code which states that the willful killing of an unborn child, by any injury to the mother of such child, is murder if it resulted in the death of such mother, to be deemed manslaughter, a second degree felony [159]. Despite these laws, there have been cases in which women with babies stillborn to mothers in their third trimester were charged with manslaughter. This prosecutorial strategy has seldom been employed and has never resulted in a conviction. It is doubtful whether manslaughter charges would ever actually result in a conviction for a drug-using mother if tested in a jury trial. It is even more unlikely that the charge would be upheld in higher courts of appeal. The case law does not lend itself to the legal conception of the fetus as a person with independent legal rights separate from those of the mother. When cocaine mothers have been convicted of manslaughter, it was the result of their guilty pleas without the deliberation of public trials [22].

Involuntary detention

In an attempt to decriminalize drug use in pregnant women, involuntary detention in treatment programs has been offered as an alternative. It has been argued that involuntary detention is the best available mode of administering punishment, rehabilitation, and deterrence all at once, as well as providing the addict with education and protection for the infant [160,161]. The trend in states is to move toward reducing the severity of the effects of drug use on the infant. According to The New York Times, when doctors specializing in maternal-fetal medicine were surveyed in 1986, more than half of them agreed that pregnant women who refuse medical advice and endanger the life of the fetus should be detained in hospitals and forced to follow their physician's orders [160]. By committing the pregnant drug user without her consent, the state is essentially taking custody of the child before it is ever born. This presents a legal and ethical conflict. By involuntarily committing the mother as a mode of protecting the infant, the court is, in some respect, putting the needs and the health of the child over those of the mother. There is an understood obligation to the mother's health and well being, but with involuntary detention, the health and well being of the fetus comes first, even though this is not a legally recognized obligation [150].

Civil interventions

With the waning popularity of criminal prosecutions against perinatal substance abusers, states have turned toward civil legal remedies. These actions are both more pervasive and more successful than criminal prosecutions. This is largely because in order to establish a prosecution against someone the state must prove that the defendant is guilty of the alleged crime beyond a reasonable doubt. In civil actions the state is only obligated to prove there is a preponderance of evidence to suggest the guilt of the accused [149].

Child neglect statutes

Civil actions in regard to child abuse and neglect provide a basis for which social welfare agencies, especially child protective agencies, can intervene and conduct investigations into the fitness of a parent [149,162]. While criminal child abuse and neglect statutes seek to punish the parents for their failure to properly care for their children, civil child neglect statutes seek to intervene in the family setting in an attempt to introduce plans of action for rehabilitating the parent and restoring normal order to the family unit [22,161]. Civil actions are established in the same way as criminal child abuse cases. They are most often based on the results of toxicology screens performed on the child at the time of birth. There are questions today on whether a positive toxicology screen is enough to establish neglect, remove the child from the home, and ultimately terminate parental rights. The general "rules" the courts have established in deciding these cases are that children have the right to be born with a sound mind and body and past evidence of neglect and abuse is relevant in determining future harm [147].

Involuntary civil commitment

Civil commitment is a civil action with state intervention that places individuals in some type of inpatient facility against their will after the state has demonstrated they are dangerous or unable to meet their most basic needs or both [149]. This type of intervention has been widely used against substance abusers, however only one state has successfully included pregnant women in the statutes that call for involuntary commitment.

Tort actions

Tort actions are civil actions that are filed by an independent party on behalf of the fetus [147,149]. These actions are meant to deter drug use by imposing financial consequences on the drug-using mother. In tort actions women are held accountable for the financial burden incurred for the cost of the birth of the drug-exposed baby.

State statutes

In formulating laws, whether criminal or civil, pertaining to perinatal substance abuse, there are certain general categories that are adhered to. There are laws dealing with the termination of parental rights and the removal of children from the home, testing/reporting/ identifying drug-exposed infants, child abuse, and treatment for the mother and alcohol. Figure 2 shows the number of states with laws in each of these categories. Table 2 shows which states have specific laws and Table 3 (see 1) provides a summary of the specific laws.

Child abuse and neglect

More than one-quarter of the states have passed laws that specifically define a mother's drug use as child abuse or neglect. Thus by defining maternal drug use as an act of child abuse, these states are insuring serious consequences for the mothers, including criminal prosecution, removal of the child(ren) from the home, and termination of parental rights. Every state has laws mandating reporting of child abuse [163]. Thus in the states where drug use is defined as child abuse, reporting of the abuse to the proper authorities is also mandated.

Termination of parental rights/removal from the home

A major reason women do not disclose their drug use and seek treatment is because they fear their children will be removed from their homes and their rights may be altogether terminated. This is not an unfounded fear. Sixteen states have enacted laws that allow for the removal of a child from the home based on various factors, including a positive toxicology screen at the time of birth, or a confirmed report of drug use in the home. After the child has been removed from the home, child protective services is obligated under ASFA 1997 to move quickly in ensuring that the parent has the opportunity to obtain treatment for their addiction through a court-formulated service plan. Noncompliance can result in termination of parental rights and adoption of the child.

Testing/reporting/identification

While every state in the country has mandatory reporting laws for child abuse and neglect, not every state has laws concerning testing/reporting/identification of pregnant and postpartum substance users. This is because not every state specifically defines drug use during pregnancy as child abuse or neglect. Given this fact, there are still a significant number of states, 17, that have laws specifically related to prenatal substance exposure. These laws range from mandating toxicology tests for infants of mothers suspected of using drugs, toxicology tests for the mother herself, to reporting the findings of any positive toxicology screen to the proper authorities, whether that be the police department or child protective services [164].

Criminal offenses vs. treatment

One of the most pressing questions among social service professionals today is whether maternal substance abuse warrants treatment or criminalization. The states also struggle with this question in formulating laws. Many states are leaning towards treating the mother. In fact, no less than one quarter of the states have laws in place mandating state establishment of treatment programs for expectant and parenting women who are also substance abusers. The state of California has enacted a law mandating an alternative sentencing program that combines treatment with criminal consequences for noncompliance. Under Cal. Pen. Code 1174.4, pregnant women with an established history of substance abuse, or pregnant or parenting women with an established history of substance abuse who have one or more children under the age of 6 are eligible to enter a drug treatment program, coupled with one year of transition services under intensive parole supervision. Should they complete the program they will be discharged from parole. If they do not complete the program, they will be returned to state prison to complete their original sentence.

Alcohol policy

Given the fact that alcohol is a legal substance in this country, it is difficult for states to enact laws criminalizing it for pregnant women. As long as they are over the age of 21, pregnant women are free to drink. However seven states do have laws in place requiring establishments that sell alcohol to post warnings about the dangers of drinking while pregnant [164].

The information in Tables 2-3 suggests that as a nation we do not have a uniform policy for dealing with drug use during pregnancy. State statues are quite varied ranging from no policies to strictly punitive policies. For some states, drug use during pregnancy equals child abuse (Iowa, South Carolina, Tennessee, Florida). Other states (Maryland, New York) are more vague and include treatment options. For example, Missouri grants pregnant women priority at drug treatment centers and Washington only requires an investigation. States also vary with respect to the definition of "drug." For example, some states (Maryland, Iowa, Oregon, Idaho, Illinois) only mention illegal drugs or controlled substances and not alcohol.

Policies for newborn drug testing, including conditions under which a drug screen can be ordered, and mandatory reporting also vary from state to state. Some states (e.g., Massachusetts, Arizona, Minnesota) require mandatory reporting to CPS following a positive drug screen; Colorado "encourages" but does require reporting; and other states (e.g., California, Kentucky) evaluate and determine if further investigation is necessary. In California, a positive toxicology screen is not in and of itself a sufficient reason to report; further assessment of the needs of the mother and child are required.

Foster care

Maternal drug use impacts directly on the foster care system. In the mid-1970s, there were over half a million children in substitute care in this country. There was concern with child welfare programs and in 1980 the concept of "permanency planning" was codified into law. By 1985, the foster care population dropped by almost 50%. But permanency planning was ultimately ineffective and in 1995 the number of children in substitute care had risen again to nearly 500,000. The number of children under five years of age is increasing at twice the national rate of the general foster care population. This dramatic increase in the number of children in foster care from the late 1980's through the 1990's is due in large part to increased drug use among women, particularly cocaine use among pregnant women.

Substance use during pregnancy not only raises questions about the options for the drug-using women, treatment considerations, and the medical and developmental outcome of the infant, but also about the placement of the drug-exposed infant. There have been substantial reports of the effects of prenatal substance exposure upon both medical and developmental outcomes of the infant. Arising from this is the perception of drug-using mothers being unable to care for their children, thus propelling social service agencies to intervene and remove the child from the mother's custody.

The increased need for foster care homes has created a lack of available foster homes for these infants. The fear of detection, incarceration, and child removal associated with reported drug use drives women away from the health care system for prenatal care and from seeking treatment for their substance abuse problems. Thus, there is an increase in the number of "boarder babies."

Boarder babies

"Boarder babies" are at-risk infants (typically drug-exposed) in the custody of Child Protective Services (CPS) who remain in the hospital beyond the date of medical discharge, i.e., they do not require any special medical care but stay in the hospital because they are awaiting placement decisions or because placement options are sparse. The "boarder baby" problem is tied to the criminalization of mothers with infants who are prenatally drug exposed and to a decrease in the availability of appropriate foster homes [165].

The U.S. Department of Health and Human Services estimated that there were 9,700 "boarder babies" nationwide in 1991 [166]. For this study "boarder babies" were defined as infants younger than 12 months of age who remain in the hospital beyond the date of medical discharge. Almost one-fourth stayed from 21 to over 100 days beyond medical discharge. "Boarder babies" place increased demands on both the health care system and the child welfare system. A second study recently reported 1998 estimates and showed 13,400 boarder babies nationwide. This represents a 38% increase in the boarder baby population between 1991 and 1998. The majority was African American, although the percentage of African American boarder babies was less in 1998 (56%) than in 1991 (75%).

Although the total number of boarder babies increased by 1998, there was a change in the geographic distribution of these infants. In 1991, three jurisdictions (New York City, Cook County, Chicago and Los Angeles County) accounted for 47% of the boarder baby population. By 1998, boarder babies in these three jurisdictions decreased 21% and increased by 90% in the rest of the nation. Hospital staff in the three jurisdictions attributed the decrease in the boarder baby population to improved efforts by the child welfare agencies and hospitals to more promptly identify alternative placements for these children. The per diem cost for boarder baby care rose 17% from $476 in 1991 to $570 in 1998. Positive findings were that from 1991 to 1998, the mean length of stay for boarder babies beyond the point of medical discharge decreased from 22 days to 9 days, and the percent residing in hospitals for more than 21 days decreased from 24% to 12%. Also over this period the percent of premature infants decreased from 47% to 35%, and the percent low birthweight decreased from 57% to 33%.

Sixty-five percent of these infants were tested for drug exposure in 1991; 82% were tested in 1998. In 1991, 79% of those tested were positive for drugs. Drug exposure has been the most common reason for keeping babies in the hospital, with crack/cocaine as the most prevalent drug accounting for 71% of the cases. The number of boarder babies discharged to out of home placement was 66% in 1991 and 70% in 1998. The most common placement was foster care (59% and 57% in 1991 and 1998 respectively). Relative foster care was 14% and 12% in 1991 and 1998.

Abandoned infants

Although the terms "boarder babies" and "abandoned infants" are often used interchangeably, and both are related to prenatal drug exposure, they are differentiated by the Federal government. Boarder babies may eventually be claimed by their families or abandoned and/or placed in alternative care. Abandoned infants are under the age of 12 months, and have not yet been medically discharged but who are unlikely to leave the hospital in the custody of their biological parent(s). This includes infants whose parents are unwilling or unable to provide care and/or whom the child welfare agency determines cannot safely remain in the care of their biological parent(s). Abandoned infants are viewed as "potential boarder babies" whose living arrangements were resolved prior to the time of medical discharge. Obviously, infants removed from their biological parent(s) due to maternal drug use during pregnancy fit into this category.

The survey also queried hospitals in those jurisdictions with a boarder baby problem about the number of abandoned infants. In 1998, there were 17,400 abandoned infants in these hospitals compared to 11,900 in 1991, an increase of 46%. They were mostly African American (67% in 1991 and 48% in 1998) and mostly premature or low birthweight in both years. The percent of infants positive for a drug was 78% in 1991 and 72% in 1998 and Cocaine was the drug in 70% of the cases in both years. Unlike the boarder babies, there was no change in the average length of stay for abandoned infants; the average was 34 days in both 1991 and 1998. Out of home placement was 68% and 58% in 1991 and 1998.

Foster care and child outcome

Infants placed in foster care because of illegal drug exposure have more health and caregiving needs than non-exposed infants placed in foster care [167]. Drug-exposed infants were more likely to have conditions such as anemia, asthma, small size, and feeding, sleep, and behavior problems. Other research has shown that intrauterine drug exposure predisposes infants to poorer outcomes such as low birthweight and delayed cognitive or motor development. Although research also suggests that the effects of intrauterine substance exposure may be subtle and most health care professionals may not consider the needs of these infants severe, they do place more demands upon the caregivers of these infants. Many caregivers feel they are ill equipped to care for drug-exposed infants. They do not understand the subtle needs of drug-exposed infants and therefore fear they will not be able to manage their care. These needs place additional demands on the foster family and thus the concerns of not being able to meet those needs contribute to the lack of placements for drug-exposed infants.

Even when foster care placements are available, foster parents of infants prenatally exposed to drugs have a higher "burnout" rate [168]; that is, they choose to return the baby more often than if the baby is not drug-exposed. They face a lack of supportive services. Interestingly, adoptive parents of infants whose drug exposure status was unknown to them expected the easiest time in caring for their children [169]. However, with regards to satisfaction, there was no difference between those families adopting substance-exposed infants as compared to those adopting infants not exposed to illegal drugs.

Infants that test positive at birth are more likely to be placed in foster care [170]. They are also more likely to have siblings in foster care and their mothers are more likely to have previous involvement with CPS. Infants exposed to drugs prenatally are also likely to be placed in kinship (relative foster) care but receive fewer visits from their biological parents [167]. Yet, these same families do not receive significantly enhanced services. One pressing issue is that the problems associated with infant outcome are influenced by other factors pertaining to maternal drug use such as poor health, nutrition, depression, poverty and the postnatal environment of these infants. From this arises the question of which needs and services are being considered when the infant is placed. All issues surrounding drug addiction (treatment, lack of support, finances) seem to negatively impact upon parenting. Abused or neglected children are at risk for developing poor attachments to their caregivers. The emotional consequences of multiple placements should be considered in the placement of infants.

In a study to determine factors that affect the nature of legal custody and placement, MacMahon [171] studied the outcome of infants who were dependents of the court at discharge from the hospital. Court-ordered services for the mothers differed, although most were required to attend a drug rehab program, undergo random drug testing, and receive public health nurse visits. Other families were required to attend psychological counseling and parenting education classes. Those infants reunited with their biological mothers in their first year of life had older mothers, had received some prenatal care, did not have previous involvement with CPS, and had mothers who had not had any other children removed from them. Two factors related to a parent never receiving custody of the child were the mother's previous involvement with CPS, and having previously lost custody of her child. Since some mothers were not able to comply with court-ordered drug treatment and had positive urine screens, they did not receive full custody of their infants. The MacMahon study showed that court-ordered monitoring of required services can help with permanency decisions. Yet, this raises questions about the additional supportive services necessary for these families.

Increased communication between the agencies that provide care to these at risk infants and families is critical [170]. Coordinated case management can decrease obstacles to services [172]. The increased healthcare risks of these infants suggest the need for more intensive interventions and training. A comprehensive and multidisciplinary approach to the care of these infants seems warranted [167,173]. Thorough assessment of the infants that includes an evaluation of developmental areas such as motor, cognition, language, self help skills, coping skills, and emotional well being should be conducted at regular intervals after placement in foster care. In addition, an assessment of the caregiver's parenting skills should be conducted. Helping both biological and foster parents understand the child's needs and capabilities is crucial in trying to de-stigmatize drug-exposed children [174]. Interventions should include biological and foster parents when appropriate. Having the biological mother attend the infant's medical or diagnostic appointments can enhance continuity of care [167]. Longitudinal follow-up is critical. Comparisons of infants in foster care exposed to drugs with infants in foster care not exposed to drugs did not show increased developmental delays in the group of infants prenatally exposed to drugs [174]. However, approximately half the infants in each group were at risk for further delays, suggesting the need for long-term follow up. Finally, training of foster parents is a key component for enhancing the caregiver child relationship.

While the research is unclear about the outcome of infants exposed to drugs, the research concerning those infants placed in foster care stresses the importance of coordinated, comprehensive, and intense interventions and monitoring. It is understood that the needs of infants prenatally exposed to drugs include consistent monitoring. More studies are needed to evaluate the longitudinal outcome of these proposed services.

Adoption and safe families act (ASFA)

Growing national concern regarding too many children who linger in foster care led to the passage of the Adoption and Safe Families Act (ASFA). ASFA was signed into law on November 19, 1997 and puts into place the most extensive changes in federal child welfare policy since the Adoption Assistance and Child Welfare Act of 1980. ASFA seeks to provide the states with the necessary tools and incentives to achieve the original goals of Public Law 96-27: safety, permanency, and child and family well being. The impetus for ASFA was the general dissatisfaction with the performance of state level child welfare systems in achieving these goals for children and families. ASFA seeks to strengthen the child welfare system's response to a child's need for safety and permanency at every point along the continuum of care.

In part, the law places safety as the paramount concern in the delivery of child welfare services and decision-making, clarifies when efforts to prevent removal or to reunify a child with his or her family are not required, and requires criminal record checks of prospective foster and adoptive parents. To promote permanency, ASFA shortens the time frames for conducting hearings, creates a new requirement for states to make reasonable efforts to finalize a permanent placement, and establishes time frames for filing petitions to terminate the parental rights for certain children in foster care.

ASFA requires child welfare agencies to pay heightened attention to children's well-being and safety and to their needs for permanent families, and is founded on five key concepts: (1) the child's health and safety "shall be the paramount concern" in determining what efforts should be made to reunify families, (2) in "aggravated circumstances" as defined in State law reunification services to families are not required (3) when no reunification services to families are required, the child needs a quick, alternative permanent placement, (4) in all other cases, services to families need to be improved and accelerated and, (5) in all cases, permanency – whether the goal is to return home, adoption, legal guardianship, or legal custody with a fit and willing relative – needs to be expedited.

Under ASFA, a permanency hearing must be held in Family Court 12 months after the child enters foster care and at 12-month intervals thereafter. For ASFA, the date that a child enters foster care is defined as either: 1) sixty-days after the child is removed from the home, or 2) the date that the child is found by a Court to be an abused or neglected child, whichever is earlier. At the hearing, the Family Court judge must determine whether and when the child will be either returned to the birth parents, placed for adoption, referred for legal guardianship, placed with a fit and willing relative, or placed in another planned permanent living arrangement.

In order to ensure that children do not linger indefinitely in foster care, ASFA creates a presumption that a petition to terminate parental rights must be filed, and concurrently steps to finalize an adoptive placement must be initiated in the following three circumstances: Where a child has been in foster care for 15 of the last 22 months, OR where a court has determined a child to be an abandoned infant, OR where a parent has committed certain crimes against the child or a sibling (i.e., murder, manslaughter, attempted murder or manslaughter, or a felony assault resulting in serious bodily injury to the child or another child of the parent).

Although ASFA creates the presumption that certain categories of foster children should be freed and adopted quickly, it also creates three grounds for exceptions to that presumption: (1) at the option of the State, the child is being cared for by a relative, (2) a State agency has documented in the case plan (available for court review) a compelling reason for determining that filing a TPR petition would not be in the best interests of the child, or (3) the state has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child's home if reasonable efforts to reunify the family are required.

Barriers to treatment

The overriding feeling among policy makers and social welfare agencies is that preserving the family is important where at all possible. This view has been reinforced by ASFA. Substance use is not always a clear indicator of a parent's lack of commitment to their child. In fact many drug users are committed to being parents. One large barrier to seeking treatment is that the substance addict is afraid that if they seek help they will lose their children [175]. While the main goal of civil interventions is to protect children rather than punish mothers, many women view them as the state trying to take their children. Thus agencies have taken steps to make removing children from their homes the last resort. If this cannot be achieved, the next goal is family reunification and often the success of a program is measured by how effectively the program preserves the family.

Thus in an attempt to preserve the family, the preferred method of state intervention has become treatment and rehabilitation. There has been little consensus over the years on the best methods to employ in treating pregnant women with substance abuse problems. While treatment is recognized as the best method of addressing the issue, there are many problems that plague it that have made it difficult to implement on a large scale. These problems include a shortage of drug treatment programs, the resistance of drug treatment programs to including pregnant women, lack of consensus on the most effective method of treatment, cost, and whether treatment should be voluntary or forced [176,177].

The reluctance of drug treatment programs to accept pregnant women is a large problem that has plagued the treatment approach to state intervention. In trying to understand this phenomenon it is important to note that historically drug treatment programs have exhibited a reluctance and insensitivity to addicted women in general. In the early 1970s the National Institute on Drug Abuse began research that targeted women addicts. In the treatment programs they surveyed, they found that male staff and participants were openly hostile to women clients, employed a confrontational "therapeutic" style uncomfortable for women, and directed them into gender-stereotyped tasks and training which offered minimal compensation or chance for success after completion of the program. The programs also failed to address many issues that played a strong role in female drug addiction. These issues included the environments of violence and sexual exploitation in which the women often live. The programs provided no provision for the care of the women's children and also included no contraceptive and prenatal medical services [86,175,178]. This all but ensured lack of participation by pregnant women in established programs.

Reviews of the literature with regard to chemical dependency reveal that as a group the female user has been overlooked. Research also shows the lack of availability of treatment programs for women, specifically pregnant or child-bearing women. In 1976, Public Law 94-371 gave consideration to the funding of women's treatment and prevention programs [179]. Still, programs frequently overlook the special needs of the female user. Historically, in studies that examined treatment outcomes, approximately half of these studies included women, whereas a very small number focused on women alone. Studies that included pregnant women are even fewer. Those that do include this population focus mainly on birth outcome of the baby or early infant development, and very little focus was placed on treatment issues for women, or treatment outcome [180]. Finkelstein [181,182] noted that drug-using women tend to be younger and are more likely to be pregnant than the typical female client found in alcoholism treatment centers.

States have used a variety of approaches to address problems created by prenatal substance use. These approaches include criminal prosecution of the mother, civil intervention by child protective service agencies, and public health initiatives providing education, intervention, and treatment. Some states are combining approaches by creating "drug courts" (discussed later) that mandate treatment and/or jail time. However, at this time, no state has made pregnant drug addiction illegal, per se. Instead, states have applied statutes dealing with ch