Taking the Baby before It’s Born: Termination of the Parental Rights of Women Who Use Illegal Drugs While Pregnant


Several states allow a mother and child to be permanently separated for something the mother did before the child was born. These states have made the use of illegal drugs while pregnant a ground for terminating a mother’s parental rights. The intuition motivating such a policy is that drug users are bad parents, and the state protects children by removing them from such parents. Setting aside for the moment the question of whether pre-childbirth behavior should ever be a basis for evaluating parenting ability, the presumption in favor of termination is fundamentally ill conceived. Termination of parental rights is a drastic and unwise response to the public health problems caused by illegal drug use: drug use or addiction does not, ipso facto, make someone unfit to care for a child, although it may cause behaviors which constitute bad parenting. If those behaviors do emerge and they rise to the level of abuse or neglect, they would be sufficient legal ground for government intervention to protect the child in every state in the union. So, making drug use itself a ground for breaking up a family is unnecessary. Given that it also has various negative effects, including trammeling the constitutional rights of mothers and creating legal orphans, the policy should be abandoned.

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