In the last two decades of the 20th century, many states tried to respond to the increasing number of cases where babies were born to women who indulged in drug abuse during pregnancy, particularly the use of cocaine. The city of Charleston, for example, introduced a policy that required public hospital at the University of South Carolina to test the urine of pregnant women attending the hospital. This test was carried out regardless of whether these women gave consent and any one of them who tested positive for cocaine was incarcerated ( Gottlieb, 2001 ). However, this action brings about certain utilitarian and legal issues as well as concerns over the impact on the family. This paper studies these issues in order to arrive at a proper conclusion concerning whether pregnant women should be tested for drug use without their consent.
The Utilitarian Aspect and Consequences for the Family
While the society condemns harmful behavior and supports measures to prevent it, this does not imply that testing pregnant mothers for drug use without their consent serves this goal. Given the nature of drug addiction, various studies demonstrate doubt that taking such a step would be effective in deterring women from indulging in drug abuse during pregnancy. Addiction is a disease and can barely be treated by self-discipline ( Gottlieb, 2001 ). Drug dependency comprises the powerlessness to reduce or manage substance abuse even though there are likely adverse results. Thus, it is impossible to affirm that the current criminal laws linked with illegal drugs can be successful in dissuading drug use among pregnant women.
Delegate your assignment to our experts and they will do the rest.
Additionally, the consequences of testing pregnant women without their consent are significantly adverse. For instances, if the mother tests positive for drug abuse, she would be incarcerated and thereby lose contact with her child. In many cases, the mother loses custody of the child, and the latter is put in protective custody or foster care. Furthermore, a pregnant woman may not get the health-related services that they require or may provide inaccurate information to health care providers for fear of being reported by their physicians. This is likely to lead to fetal and maternal health complications. In its Amicus Curiae Brief in a Supreme Court case, the American Medical Association insisted that testing pregnant women without their consent would actually escalate the risk of harm by discouraging prenatal and post-natal care as well as damaging the relationship between the patient and the physician ( Gottlieb, 2001 ).
The Legal Aspects
Given that a positive test for substance use would eventually lead to the involvement of law enforcement, it is important to consider the constitutionality of testing women during pregnancy. In the case of the City of Charleston, several of the arrested women filed lawsuits claiming that these tests violated their Fourth Amendment Rights, which protect the public from unreasonable searches and seizures ( Gottlieb, 2001 ). A search is considered to be reasonable if there is probable cause. In this case, the tests are unreasonable and therefore require the consent of the patient. It should be noted that conducting such tests would be a violation of the pregnant woman’s Fourth Amendment Rights whether or not it was conducted under a warrant and probable cause. The only problem with such an argument is that the current law relevant to this discussion is somewhat unclear about reasonable searches. Regardless, the Fourth Amendment requires law enforcement agencies and hospitals to conduct such tests based on individualized probable cause.
The other legal issue raised by these tests concern the autonomy of the pregnant woman. Drug laws protect people from causing harm to themselves whereas fetal protection laws barely serve the health interests of the mother whose actions it monitors ( Gottlieb, 2001 ). Instead, fetal-protection policies imply that a woman is guilty of child abuse if she indulges in substance abuse during pregnancy. However, the ethical principle of respect for persons holds that the mother and the fetus are one body and that the former becomes the autonomous decision-maker. Given that the pregnant woman and her fetus are considered to be a unit, any policy or action during the course of the pregnancy has to be to the benefit of both of them. Thus, any action aimed at promoting fetal rights comes at the expense of the pregnant woman’s right to privacy and personal autonomy.
There is no doubt that the behavior of a pregnant woman can bring preventable harm to the unborn baby probably by failing to get adequate sleep or nutrition, performing strenuous activities, indulging in substance abuse, or, though rarely, by having intercourse. The society is quick to condemn pregnant women who expose their unborn babies to such dangers. However, constitutionally, the personhood of the pregnant woman must be respected, and it is hardly possible to achieve that with most fetal-protection policies. Such policies only treat the pregnant woman as if she is only there to serve the fetus inside her, and treat her as a parent – which she is not until the day of delivery ( Gottlieb, 2001 ).
From the discussion, it is clear that testing pregnant women for substance abuse without their consent brings about more harm than good, particularly for the woman and her fetus. Such a practice is counterproductive as it is likely to deny a mother custody of her child and does very little to prevent cases of drug abuse among pregnant women. The rationale behind these tests does not take into account the fact that legislation cannot help treat drug addiction in an individual. These tests are also a violation of the Fourth Amendment Rights of the pregnant woman because they constitute “unreasonable searches and seizures.” Additionally, employing fetal policies undermine te rights of the pregnant woman as both of them are considered to be one unit.
Reference
Gottlieb, S. (2001). Pregnant women cannot be tested for drugs without consent. BMJ: British Medical Journal , 322 (7289), 753.
