Obey Law on Criminal Reporting for a Pregnant Mother Addicted to Heroin

You are the obstetrician of a 27-year old single woman referred to you late in her first trimester after positive pregnancy test. She admits to a history of heroin addiction, with several unsuccessful attempts “get off it” in community-based programs, as well as to current using. Although buying and using heroin is illegal, she has no criminal record. The heroin use poses developmental risks to the fetus as well as the risk of fetal addiction.

She claims she will “do anything now to help my baby.” She says she previously believed she was infertile and considers the pregnancy a gift from God. She insists that “all I want in life is to be a good Mom.”

You live in a state that defines drug abuse while pregnant as criminal child endangerment with mandatory reporting and mandatory treatment. As you interpret the law, your patient clearly falls under its purview. You know if you follow the law on mandated reporting, she will be prioritized for immediate access to an inpatient drug treatment program that provides medically-supported heroin withdrawal for mother and fetus. But she may also get a criminal record. Or she may be flagged to child protective services in advance of treatment, treatment outcome, or pregnancy outcome—increasing the risk that after birth her baby will be taken from her regardless of treatment outcome.

You believe she is strongly motivated to try to become drug-free for the sake of her fetus, and with proper medical and social support, could be successful without coercion.

What should you do?

Tensions between ethical ideals:

• Who is the patient? Obstetricians have three relevant, sometimes competing, senses of who their patient is: the mother, the fetus, and the maternal-fetal relationship. How you analyze this case may depend on the extent to which you think maternal and fetal interests are consistent or in tension in the case.

• Duties to patient or to public? You may feel torn between conflicting duties to respect autonomy and confidentiality and to obey the law. Assuming this patient does not wish to be reported to authorities, respecting autonomy, as well as maintaining confidentiality and trust, clearly weigh toward non-reporting. At the same time, following laws is generally a moral duty. In terms of beneficence, reporting might enhance access to substance-abuse treatment for the mother but at a high cost of other negative consequences to her, in addition to infringing her autonomy.

• Which beneficence? The rationale of the law is for the benefit of the fetus. You believe that stopping the drug abuse by any means indeed would benefit fetal development. But you may nonetheless worry that fetal interest is unclear, because reporting could result in a premature decision to take a baby away from a loving and potentially competent mother in favor of a troubled foster care system marked by radically inconsistent quality of caregiving.

• Duty to follow law versus conscience in the face of laws deemed unjust? While you generally are a law-follower, you might feel troubled about whether the law is just: given its imposition on the physician-patient relationship; its intrinsic discouragement of pregnant substance-abusers to seek medical care; and its lack of an analogue for any male patients exhibiting substance-abuse behavior. At the same time, you may feel that the democratic rule of law is itself an ethical good that requires obedience.

• Report the mother according to the law and hope she benefits from mandatory treatment.

• Do not report the mother. Do all in your power to help her gain urgent admission to an appropriate drug treatment program.

• Other?

If you interpret the case as a strict dilemma, how could you minimize infringement?