Neonatologist Stephen W. Patrick of Vanderbilt University Medical Center recalls one patient in particular. She was seeking care for an opioid use disorder (OUD) at the treatment facility that he runs in Nashville, Tenn. The patient came in frantic after an exchange at her first prenatal visit. The sonographer who conducted her ultrasound, she recounted, told her in a disdainful tone that she should have a home for the child lined up because drug users never leave the hospital with their babies.
Patrick, who is also executive director of Firefly, a treatment program for pregnant and postpartum women in recovery and their infants, says that this situation is common for pregnant women with substance use disorders. Upon giving birth, they are often deemed “unfit” to parent, and separation from their babies is often a “foregone conclusion,” Patrick says.
Over the past decade pregnant and postpartum women have been hit hard by the opioid crisis that has rocked the U.S., exacerbated by the synthetic opioid fentanyl. Though certain medications have been shown to be effective at treating OUD and preventing opioid overdoses both in pregnant women and the general population, they are not widely available at addiction treatment facilities and are less likely to be administered to pregnant women. (Although pregnancy also occurs in girls, transgender men and nonbinary people, most of the research and experts consulted for this article specified pregnant women and girls.)
In response to the opioid crisis, more than half of states now have laws that require health care professionals to report suspected prenatal substance use to Child Protective Services (CPS), and many states now consider substance use during pregnancy to be child abuse. This means that parents with OUD who seek out prenatal care can be jailed or have their children taken away at birth—especially Black parents, who are four to 10 times more likely to be reported to authorities than white parents.
While these laws might have been enacted to protect children, they can end up discouraging pregnant women from getting help, says Miriam S. Komaromy, medical director of the Grayken Center for Addiction at Boston Medical Center. Many women suffer in silence or overdose because they find that giving up opioids cold turkey is next to impossible. Data on pregnancy overdose deaths is sparse because coroners often don’t check urine to see whether a person was pregnant, and it does not become obvious until they are far enough along in pregnancy. But studies show that in recent years unintentional drug overdoses, especially those involving synthetic opioids such as fentanyl, have become a leading cause of pregnancy-associated deaths.
“It’s critical that a pregnant person feels able to seek help, but mandated reporting sets up a dynamic in which she feels afraid to acknowledge that she has a problem and maybe even afraid to seek any prenatal care because of the fear that a doctor will detect that she has a substance use disorder,” Komaromy says.
A study published in the journal Preventative Medicine in June 2022 found that the 11 percent of women nationwide who reported using substances when they were pregnant postponed prenatal visits if they sought medical care at all. This is concerning because prenatal care leads to a decreased risk of premature birth or fetal death, especially in women with untreated substance use disorders.
State reporting mandates put heath care providers in a difficult position. While they see their role as being an advocate for pregnant women and their babies, they may be required by law to report a positive drug test even if they don’t feel that the infant should be taken away from a parent.
“In our society, we tend to have a knee-jerk reaction in thinking that anyone who’s using a substance couldn’t be a good parent, yet the norm in the United States is to drink during pregnancy,” Komaromy says.
What’s more, many doctors don’t understand the laws and are afraid of losing their license, so they end up reporting out of confusion, says ob-gyn and addiction medicine physician Mishka Terplan of the Friends Research Institute, who is also a member of the American College of Obstetricians and Gynecologists’ Opioids and Addiction Medicine Expert Work Group. According to an August 2022 study published in the journal Drug and Alcohol Dependence, doctors often order a urine toxicology test or refer a pregnant patient to social work—decisions that typically result in a report to CPS.
Some physicians also conjecture that filing a report might provide a pregnant woman with needed resources for OUD treatment. But Terplan says this line of thinking is deeply misguided. “Child welfare is a surveillance agency, not a service agency, and it cannot provide any direct services,” he says. If drug use is suspected during pregnancy or an infant is diagnosed with prenatal substance exposure, however, CPS can respond to reports by removing the child after birth and placing them in the foster care system. Removal can sometimes happen if a parent is not at fault. A drug test may not paint an accurate picture because certain drugs, such as cannabis, can stay in the body for a long time. So a pregnant woman may have used such a substance before she knew she was pregnant.
The current policies have a wide-ranging impact. An August 2019 study co-authored by Patrick in the journal Hospital Pediatrics found that from 2011 to 2017 the number of infants entering the foster care system in the U.S. grew by nearly 10,000 each year. By 2019 at least half of these placements were associated with parental drug use. Some of them are infants who were separated almost immediately after birth as a result of reporting. In West Virginia one in 25 infants is in foster care—and other states have registered comparable numbers. The child welfare system is intended to protect children from abuse, and Patrick says that some homes just aren’t safe for kids. But, he adds, “the way the system is currently structured casts too wide of a net.” In some states, if there’s any substance exposure at all, a parent can get referred to that state’s child welfare agency even though the foster system is often much more dangerous than home. Some reports show that one in six kids in the foster care system are abused.
Furthermore, parents whose infants are removed at birth are not always given access to treatment for a substance abuse disorder. Marian P. Jarlenski, an associate professor of health policy and management at the University of Pittsburgh’s School of Public Health, says that this care can fall through the cracks because many obstetricians are less inclined to treat addiction than they are a pregnancy. For example, in the past, they may not have had a so-called X-waiver, a document that, until January 2023, was required by the Substance Abuse and Mental Health Services Administration (SAMHSA) and the Drug Enforcement Administration (DEA) to prescribe medications for opioid use disorders. Jarlenski says this is a gap that needs to be filled. “Labor and delivery [are] far too late for baby and mom. It should be a conversation that happens earlier in pregnancy,” she adds.
Substance use disorder treatment programs such as Firefly in Nashville and other facilities such as the Comprehensive Addiction and Pregnancy (CAP) program at Johns Hopkins Bayview Medical Center, are helping to meet this need. A December 2021 study published in the journal Addiction and co-authored by Jarlenski found that medications for opioid use disorders such as buprenorphine and methadone were highly effective at protecting women from overdose and improving pregnancy-related outcomes without harming the development of the fetus.
Yet these treatments aren’t widely available. Just 19 states have drug treatment programs specifically for pregnant people. And according to a January 2022 study published in the Journal of Substance Abuse Treatment, fewer than half of opioid abuse disorder treatment programs have medications like buprenorphine available for patients.
Research also shows that when pregnant women are treated for opioid use disorders, they’re far less likely to overdose postpartum, which is the most vulnerable time for women who have managed to abstain from substance use during pregnancy, says Jacquelyn C. Campbell, a professor of nursing and expert in intimate partner violence and maternal mortality at Johns Hopkins University. After giving birth, many parents may struggle with untreated substance use disorders, financial struggles and, in some cases, postpartum depression. Campbell notes that many women who use drugs are also the victims of domestic violence, which can worsen under the stress of a newborn. “As a coping mechanism, they may turn to substances, and unfortunately their bodies aren’t used to it,” she says. As a result, Campbell adds, they’re more likely to overdose.
Beyond treatment, Terplan says that we must consider the various harms that may befall a child in the foster care system and elsewhere when they are separated from their parents. To that end, some states are reevaluating mandatory reporting laws. If passed in Massachusetts, the bill H.221, or An Act Supporting Families, would eliminate reporting laws in the state. And in 2021 Washington State legislators passed the Keeping Families Together Act, or HB 1227, which raises the legal standard by which children can be separated from their parents. The law requires courts to consider the danger that a child may face in the foster care system and mandates that parents be offered services such as substance use disorder treatment before authorizing removal. These measures are intended to slow the process of foster care placement and potentially protect parents from losing their children unnecessarily.
For pregnant women with substance use disorders, increased access to medical treatment and an end to punitive drug laws could mean a chance to be a parent to their children. “Right now in this country, the right to parent is under attack,” Terplan says.