Skip to main content
Find a Lawyer
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Find a Lawyer

More Options

Using Drugs During Pregnancy Isn't Child Abuse, Pennsylvania Court Rules

By Lisa M. Schaffer, Esq. | Last updated on

You can't abuse a child if there is no child, according to the Pennsylvania Supreme Court. In the debate over whether using drugs during pregnancy rises to the level of child abuse, the court found that a fetus is not a child, and therefore the act cannot amount to child abuse. As such, Child Protective Services has no standing to investigate such matters, and mothers cannot be punished for it.

This Isn't Fetal Protective Services

In this case, a pregnant woman was taking opioid painkillers and using pot when she was impregnated in 2016. The woman turned to medication-assisted treatments, but unfortunately relapsed just prior to giving birth. When her newborn showed signs of opioid withdrawal, the baby was taken away by the state, based on Child Protective Services Laws (CPSL).

This case batted around through the Pennsylvania courts. The local court gave custody of the baby to the state; the juvenile court ruled it wasn't abuse and took it back; the superior court overruled juvenile, claiming it was, but asked the state supreme court to review the case. And now the highest court in the state has overruled the superior court, claiming it couldn't be child abuse because at the time the drugs were consumed, there was no child, only a fetus. "Had the General Assembly intended to include a fetus or unborn child under the protections of the CPSL, it would have done so," Justice Christina Donohue wrote for the majority.

Ruling Could Have Gone Either Way

According to the mother's attorney, he could have seen the Pennsylvania Supreme Court ruling either way, since there are some states that have viewed this as child abuse, even though the majority do not. However, the attorney celebrated the decision, claiming "We think that's the right way to approach this, because this is a health issue and the worst thing you can do with a health issue is punish people. It drives people from treatment and it results in worse outcomes for everyone."

Dissenting Opinion Focuses on Timing of Injury Not Neglect

The dissenting Pennsylvania Supreme Court justices disagreed with the way the majority viewed the case. They believe that the place in time for viewing whether or not there is child abuse is when the damage actually shows up, which here was after childbirth, rather than when the injuring behavior actually took place, in the womb. "The facts in this matter more closely resemble neglect cases where the injury manifests at some point in time after the neglect as in cases of malnourishment from lack of food," wrote Justice Sallie Mundy.

If you have had your child taken away for drug abuse during pregnancy, contact a local family law attorney. These lawyers have great experience in dealing with Child Protective Services, and know not only the subtle nuances of the law, but also current trends and best defenses. If you are in doubt, contact one today to discuss your case. You may be pleasantly surprised.

Related Resources:

Was this helpful?

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:
Copied to clipboard