Ironically, ARTs, which are virtually unregulated at state and federal levels, can pose far greater risks to a fetus as the failure rate is at least 66% (and higher in older women), and the dangers associated with the procedures include premature birth, multiple gestations, low birth weight babies, miscarriages, and higher incidences of cerebral palsy, hearing impairment, and cognitive delays in the newborns than in the general population. In cases involving fetal crowding resulting from multiple gestations, babies might survive in utero, but die after birth. In some cases, the fetuses do not survive to delivery. Legislators overlook the health risks associated with these types of pregnancies, despite the known medical complications associated with aggressive fertility cocktails that often accompany ART therapies. Serious child and maternal health problems can result from ARTs. Indeed, the intense fertility drugs, combined with the choice to implant multiple embryos can be directly linked to multiple gestations and low birth weight babies.
Perhaps legislators and prosecutors focus their attention on crack and methamphetamine users because they believe that babies exposed to these substances in utero are far more at risk of serious health problems than other babies. But, this view of fetal health lacks empirical support. In recent years, medical organizations such as the American Medical Association, and others, have dismissed the “crack baby” phantom child as a myth. Indeed, reputable peer-review medical journals such as the Journal of the American Medical Association (JAMA) and the New England Journal of Medicine (NEMJ) now refuse to publish articles using the term “crack baby.” The decision made by these esteemed medical journal editorial boards to retire the term “crack baby” was not based on appeals or petitions from activist organizations representing institutionalized mothers. Rather, empirical research published in JAMA revealed that the so called “crack baby” does not exist. 1
More than a decade ago, a study sponsored by the National Institute of Health indicated that the effects of cocaine use during pregnancy were not as severe as depicted in media accounts. In a compelling study published in JAMA, Deborah Frank and her colleagues reviewed thirty-six studies and determined that the risks of exposure to crack during gestation are not as severe or long-ranging as researchers and media pundits claimed two decades ago. The authors suggest that other known indicators of human growth and setback, ranging from poverty to other drugs, may play as much if not a greater role in determining the health outcomes in children. 2 Nevertheless, FDLs are also over-inclusive, as they call for the criminal prosecution of drug-afflicted pregnant women who carry babies to term whether or not the baby suffers an adverse consequence linked to the mother’s drug dependence.
This paper conceptualizes the new fetal drug law movement as the struggle between the use of carrots and sticks in regulating women’s reproduction. Such laws undermine Constitutional law principles as they focus exclusively on maternal conduct, destabilizing the law’s aim to achieve equal protection between the sexes. Fetal drug laws hold women to a different standard than men as achieving a pregnancy is not an asexual function. And within the gendered space, FDLs often place poor women at an even more vulnerable status. The paper argues that the stick (criminal) approach to regulating women’s pregnancies lacks political rationality and leads to unjustifiable externalities in a civil society as well as extra-legal punishments resulting in stigmatization, shame, humiliation, and stereotyping.
This project offers an alternative framework for analyzing fetal drug laws. It examines the reasonableness and rationality of such laws both from the perspective of the legislative enactments and the reasonableness of pregnant women’s conduct. At the core of this project looms an alternative lens through which to assess rationality and reasonableness of drug-dependent women. For example, is it rational for a drug-dependent woman to attempt to bring a baby to term? Equally as important, should a drug-dependent woman’s pregnancy be evaluated any differently than that of any other woman? Should drug-dependent pregnant women enjoy legal protections to bring a baby to term?
