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

NYU Review of Law & Social Change, Vol. 32, p. 423, 2008

41 Pages Posted: 24 Sep 2011

See all articles by Ian Vandewalker

Ian Vandewalker

New York University (NYU) - Brennan Center for Justice

Date Written: January 31, 2007

Abstract

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. This 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 nation. 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. In this article, I argue that legal schemes that allow the termination of parental rights for prenatal drug use violate women's Fourteenth Amendment procedural and substantive due process rights. The procedural due process issue is that, under these schemes, drug use during pregnancy creates a presumption that precludes an individualized determination as to parental fitness. The substantive due process problem is that these schemes fail the strict judicial scrutiny they deserve because there are alternative means to serve the proffered ends that are less restrictive of individuals' fundamental rights. This article argues that laws terminating parental rights for prenatal drug use violate due process and should be struck down.

Keywords: reproductive rights, family law, child welfare, due process, drug use, termination of parental rights

Suggested Citation

Vandewalker, Ian, Taking the Baby Before It’s Born: Termination of the Parental Rights of Women Who Use Illegal Drugs While Pregnant (January 31, 2007). NYU Review of Law & Social Change, Vol. 32, p. 423, 2008, Available at SSRN: https://ssrn.com/abstract=1932196

Ian Vandewalker (Contact Author)

New York University (NYU) - Brennan Center for Justice ( email )

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