Prosecuting mothers won't protect our children

December 07, 2006

The Ohio Middletown Journal
By Lynn T. Singer and Tiloma Jayasinghe
Sunday, November 26, 2006

Three-year-old Marcus Fiesel's life was cut tragically short when he was murdered, allegedly, by his foster parents. He was placed in foster care by Butler County. Now some Ohio officials are seeking to distract attention from how the foster care system failed by focusing attention instead on drug- and alcohol-using pregnant women. These officials want to make it a felony offense for a woman to continue her pregnancy to term in spite of a drug or alcohol problem. It would be criminal for a woman to give birth to a child who tests positive for drugs or who evidences developmental delays as a result of alcohol use.

It is hard to fathom how this proposal responds to the murder of a child in foster care. Some Butler County officials insinuate that Marcus may have been developmentally delayed as a result of fetal alcohol syndrome. They are quick, however, to caution that no such medical diagnosis had actually been made for this child, and they fail utterly to connect this speculation either to the murder or to how their proposal would protect children in foster care.

The fact is, this proposal would undermine both maternal and fetal health. Moreover, it is likely to create an incentive for women to have abortions rather than face jail time for continuing their pregnancies to term. Medical knowledge about addiction and dependency treatment demonstrates that patients do not, and cannot, simply stop their drug use as a result of threats of arrest or other negative consequences. Moreover, threats of arrest are likely to discourage women from seeking help.

The medical, public health and scientific communities agree that instead of improving maternal and fetal health, threats of punishment will undermine health by deterring women from seeking care. Every leading medical organization to address this issue including the American Medical Association, the American College of Obstetricians and Gynecologists, the American College of Nurse Midwives, the American Academy of Pediatrics and the March of Dimes, has concluded that the problem of alcohol and drug use during pregnancy is a health issue best addressed through education and community-based family treatment, not through the criminal justice system.

Local officials claim that women who are arrested will be offered treatment — but only in the context of the criminal justice system. In other words, the prisons are real but the treatment is illusory. There is no guarantee that this funding will ever become available. Over the past five years, numerous bills have been proposed in the Ohio Legislature to increase funding for drug treatment, but none of them passed despite the fact that making treatment available outside of the criminal justice system would save families and tax dollars (for every dollar spent on treatment, Ohio will save at least $7). In contrast, imprisonment costs more than $20,000 a year per woman on top of treatment costs.

Jailing new mothers will also have the effect of devastating families — separating women from their children who, according to research, provide a major motivation for recovery. In addition, many of the children whose mothers are jailed will have no place to go except for the foster care system — the same system that Butler County officials seem determined not to fix.

The good news is that health risks to women, fetuses and children — whether from poverty, inadequate nutrition, exposure to alcohol, drugs or other factors — can be mitigated through prenatal care, counseling and continued medical supervision. For this to be effective, however, the patient must trust her health-care provider to safeguard her confidences and stand by her while she attempts to improve her health (even when those efforts are not always successful). Putting treatment in the context of criminal punishment will undermine this trust.

As for Marcus Fiesel, instead of focusing on how to better punish new mothers, Butler County officials should honor his memory by focusing on how to better preserve families and keep children out of a foster care system that too often fails them.

Lynn T. Singer is professor of general medical sciences, pediatrics and psychology at Case Western Reserve University. Tiloma Jayasinghe is a staff attorney at National Advocates for Pregnant Women.