24 Clearinghouse Review 452 (Special Issue 1990)

Prenatal Drug Exposure and Pediatric AIDS: New Issues forChildren's Attorneys

by Abigail English, a staff attorney at the National Center for Youth Law (NCYL), 1663Mission St., 5th Fl., San Francisco, CA 94103, where she works with the Project on Childrenwith Special Medical Needs, a joint project of NCYL and the Youth Law Center. This article isan expanded version of an article that originally appeared in Lawyers for Children (1990), apublication of the ABA Center on Children and the Law, Washington, D.C. It is reprintedhere in its expanded version with the permission of the ABA.

I. Introduction

Two groups of children are presenting new challenges for legal services attorneys and otheradvocates: infants who are born exposed to drugs and those who are infected with the humanimmunodeficiency virus (HIV), which causes AIDS. Many of these children are involved in thechild welfare system either because they and their families need special services or becausethey are placed in foster care. Children's attorneys have a duty to ensure that child welfareagencies meet their responsibilities to each of these groups of children. To do so, advocatesmust learn about a broad range of medical, psychosocial, developmental, ethical, and legalissues that are essential to an understanding of the needs of these children. A familiarity withthe same information is also essential for attorneys representing the parents of these children.

In order to provide effective representation for children who may have been born exposed todrugs or infected with HIV, attorneys and advocates must become familiar with the basicepidemiologic and demographic data--as well as the limitations in the available data--concerning the incidence of these conditions in the pediatric population. Advocates must alsolearn what is known so far about the specific service needs of drug-exposed and HIV-infectedchildren. This knowledge is essential as a basis for individual representation and for advocacyon behalf of groups of these children. /1/

With the extensive attention that the press gives to these problems, particularly to drugexposure of newborns, it is especially important that advocates sort through the proliferation ofinformation, separating the facts from the hysteria. Overreacting or overgeneralizing fromlimited data is likely to be harmful to children.

II. How Many Children?

Knowing how many children are born exposed to drugs and infected with HIV is necessary inorder to project anticipated burdens on child welfare agencies and to plan and develop services

to meet the needs of these children. Therefore, it is important to have accurate estimates--butthese numbers are not readily available.

A. Births of Drug-Exposed Infants

Few reliable studies have been done on the incidence of drug exposure in newborn infants,although two recent national studies provide some indication of the scope of the problem. TheNational Association for Perinatal Addiction Research and Education (NAPARE) surveyed 36hospitals nationwide and estimated that 11 percent of women are using drugs duringpregnancy, resulting in the birth of 375,000 drug-exposed infants annually. /2/ The HouseSelect Committee on Children, Youth and Families also surveyed hospitals throughout thecountry and reported that 15 hospitals had experienced a three- to four-fold increase in thebirths of drug-exposed infants between 1985 and 1988. /3/ Increases on this scale appear inlocal estimates as well. /4/ The Office of the Inspector General, HHS, concluded, based upon200 on-site interviews conducted in late 1989 in 12 metropolitan areas, that a reasonableestimate is 100,000 babies born exposed to cocaine each year. /5/

Many children born exposed to drugs become the responsibility of child welfare agencies andenter the foster care system. If the larger estimates of numbers are accurate, this would suggestthat the size of child welfare caseloads and the foster care population could double or eventriple in a very short time. /6/ The added burden could easily overwhelm child welfareagencies, juvenile and family courts, and advocates for children and families.

Some of the available estimates have been criticized for flaws in methodology (which may leadto numbers that are either too large or too small). /7/ The NAPARE estimate, which is citedmost often, has been characterized as too high by at least one analyst who suggests that a morerealistic estimate would be in the range of 50,000 infants born exposed to crack cocaine eachyear. /8/

A number of confounding variables may affect the reliability of both estimates of the number ofbabies born exposed to drugs each year and the results of studies of the effects of prenatalexposure. /9/ Moreover, the existing estimates and study results are generally reported in grossterms, without distinguishing between infants who are born exposed to different drugs /10/ ordifferentiating among drug-exposed children based on the degree of harm that they havesuffered as a result of the exposure. Thus, horror stories about the effects on infants of prenatalexposure to crack cocaine--which may be based on studies with small sample sizes or evenanecdotal reports of individual cases--may be used to generalize about all children bornexposed to drugs. Such inferences may be inappropriate because not all infants react the sameway to all drugs: reactions may vary in nature and intensity. /11/ Nevertheless, exposure to arange of different drugs, including legal substances such as prescription drugs, tobacco, andalcohol, /12/ certainly causes serious harm to some infants.

B. Births of HIV-Infected Infants

According to data maintained by the Centers for Disease Control (CDC), as of May 31, 1990,2,315 cases of pediatric AIDS (i.e., in children ages 0 to 13) had been reported to the CDC./13/ The vast majority of pediatric cases--1,911 children--were under age 5 at the time ofdiagnosis. /14/ Minority groups are disproportionately represented among pediatric AIDScases: 53 percent are black and 23 percent are Hispanic, although these groups respectivelycompose only l5 percent and l0 percent of the U.S. population. /15/ Because the sharing ofneedles among intravenous (IV) drug users is one of the major routes of transmission, andbecause the lifestyle of some drug users, such as those frequenting "crack houses," may involveunprotected sex with multiple partners, there is overlap between the children who are bornexposed to drugs and those infected with HIV, although the exact extent of this overlap is notfully known. /16/

The number of diagnosed pediatric AIDS cases significantly understates the incidence of HIVinfection in young children, however. Some children who are infected with HIV have not yetbecome symptomatic. Even those who have developed symptoms and may be very sick do notnecessarily meet the CDC's official case definition of AIDS. /17/ According to the PublicHealth Service, "it is likely that [for] every child who meets the definition of AIDS, another twoto ten are infected with HIV." /18/ Estimates vary widely, but some experts suggest that thenumber of HIV-infected children may be between 10,000 and 20,000 by 1991. /19/

Recent developments in treating asymptomatic HIV infection may eventually improve theoutlook for children born infected with HIV; some of these children have already lived forseveral years. Nevertheless, their average life expectancy currently remains short /20/ and, atminimum, many infected children will experience episodes of serious illness and will requirecareful monitoring of their health status. /21/

III. Identifying Drug Exposure and HIV Infection in NewbornInfants

At present, the HIV antibody test and the urine toxicology test are among the most commonmeans of identifying HIV infection and drug exposure in newborn infants. In both instances,testing the baby provides indirect information about the behavior and status of the mother.Therefore, such testing raises even more sensitive legal and ethical questions of consent andconfidentiality than would ordinarily arise in connection with procedures that carry so littlemedical risk. Moreover, because of the potential stigma that may attach to AIDS and drugexposure, the benefits derived from identifying these children must be carefully assessed inlight of the risk of discrimination against them. /22/ Testing is appropriate in those situations inwhich it can serve a beneficial purpose for the children as a tool for medical diagnosis.

A. The "Tox" Screen

Hospitals are testing pregnant women and newborn infants for drugs with increasingfrequency. A few hospitals routinely screen all women or newborns; others administer testsonly in cases that meet a profile of high risk. The American Academy of Pediatrics has takenthe position, on a preliminary basis, that "universal toxicologic screening is not recommended."/23/ At least one state has recently enacted a statute requiring physicians to test newbornswhenever they think the mother "has used a controlled substance for a non-medical purposeprior to the birth." /24/

Although diagnostic procedures performed on a minor child ordinarily require the consent of aparent, few hospitals obtain explicit consent for urine toxicology tests on infants, and rarely, ifever, do they seek substituted consent from a court. /25/ Some facilities rely on the "conditionsof admission" form signed when the pregnant woman enters the hospital, although some legalexperts have suggested that either the mother's informed consent or a court order should berequired to authorize the test, because the legal and social impact of identification can be sosignificant. /26/ At least one state has enacted a statute requiring consent of a parent orguardian to perform a toxicology screen on an infant. /27/

A growing number of states explicitly require the reporting of prenatal drug exposure to childwelfare and law enforcement authorities under their child abuse reporting laws. /28/ Some ofthese states have adopted an "addictive model," mandating reports in cases in which childrenare born dependent on an addictive drug or controlled substance. /29/ Others expressly requirethe reporting of positive toxicology test results. /30/

Statutes based on the "addictive model" and on the "positive tox model" are bothunderinclusive and overinclusive. Not all drugs that cause harm to infants are addictive. Somethat are not addictive are teratogenic (causing disabling effects on organ development) or toxic(causing direct injuries). /31/ Urine drug tests carry the risk of both false positive and falsenegative results and will only identify drug use that occurred within three weeks (and, for somedrugs, within three days) prior to delivery. /32/ Moreover, some infants who test positive andwere in fact exposed may suffer no injury. /33/

In addition to problems associated with the accuracy of the test results, there is a potential fordiscrimination based on race, ethnicity, and socioeconomic status in determining whom to testand in handling test results. A recent study in Pinellas County, Florida, found that, although useof illicit drugs is common among women regardless of race and socioeconomic status, blackwomen were reported to child protective services at approximately ten times the rate for whitewomen. /34/

B. HIV Testing

HIV antibody tests /35/ share some of the characteristics of urine toxicology tests. Forexample, a positive result must be confirmed by subsequent testing in order to provide reliableinformation. Moreover, a positive test result in a newborn essentially provides informationabout the mother (her drug use or HIV status).

In the case of HIV antibody testing, a positive result does not definitively establish that theinfant is infected with HIV, because it reveals the presence of maternal antibodies to the virus,rather than the virus itself, in the infant's system; not until the child reaches the age of about 15months or develops symptoms that conclusively establish the presence of HIV infection, canthe full import of a positive HIV test at birth be known. /36/ Therefore, it is particularlyimportant that asymptomatic infants who have tested positive be retested to clarify their actualhealth status. /37/

Parental consent is ordinarily necessary for an HIV test to be performed on an infant. This isbased on the common-law rule requiring parents' consent for the medical care of their minorchildren and is consistent with the consent requirements contained in the new HIV testingstatutes being enacted in a number of states. /38/ In certain circumstances, however, parentalconsent may not be required. For example, juvenile courts may be able to authorize a test forchildren who are under their dependency jurisdiction. /39/ However, HIV testing statutes arelikely to be strictly construed in light of the serious implications of HIV testing. Therefore, caremust be taken to obtain appropriate authorization before a test is performed.

In addition to special consent requirements, more than one-half of the states have enactedspecific confidentiality requirements that apply to HIV test results. /40/ The normal rules ofmedical confidentiality also apply to information related to HIV and AIDS. /41/ Because of thepotential stigma and risk of discrimination, the confidentiality laws provide importantsafeguards for HIV-infected children. With respect to the importance of adhering to guidelinesof confidentiality, attempts are sometimes made to differentiate between young children, on theone hand, and adolescents or adults, on the other. Nevertheless, even very young children andtheir families or foster families continue to suffer from discrimination and undergo severehardship as a result of being identified as having AIDS. /42/

IV. Criminal Sanctions

Some states have used the criminal law to prosecute women who have used drugs duringpregnancy. /43/ These prosecutions have been initiated under the authority of various criminalstatutes penalizing conduct such as homicide, criminal child neglect, child endangerment, childabuse, criminal child support, delivery of drugs to a minor, and assault with a deadly weapon./44/ Although many of these cases have been dismissed, the threat of prosecution maynonetheless have a deterrent effect on women seeking drug treatment, prenatal care, or hospitaldelivery. According to the American Academy of Pediatrics (AAP),

"Punitive measures taken toward pregnant women, such as criminal prosecution andincarceration, have no proven benefits to infant health. The AAP is concerned that suchinvoluntary measures are likely to discourage mothers and their infants from receivingthe very medical care and social support systems that are crucial to their treatment."/45/

Research has shown that prenatal care correlates with improved birth outcomes for infants evenif their mothers continued to use drugs during pregnancy. /46/ Thus, measures that deterwomen from seeking prenatal care may harm children.

V. Dependency Jurisdiction

Many states include in their juvenile or family court codes provisions that explicitly orimplicitly provide a basis for juvenile or family courts to assume jurisdiction of children asdependents based upon problems associated with their parents' drug use. However, as a resultof the growing attention to and concern about drug-exposed infants, a few state courts haveaddressed the question of whether prenatal exposure to drugs alone is sufficient to supportdependency jurisdiction. /47/

Thus far, only one or two cases have held that drug exposure per se may be the basis fordependency jurisdiction, independent of any other evidence of parental unfitness or harm to thechild. /48/ Other courts have found that prenatal exposure is a relevant factor, although notsufficient to support dependency jurisdiction without additional evidence. /49/

These cases represent a minority view at this time. Evidence other than prenatal exposure todrugs alone would generally be required to establish dependency jurisdiction. In some cases,courts have applied a doctrine of "prognostic deprivation," a term that refers to deprivingparents of custody based on a prediction of their future behavior. However, these cases havegenerally required an extensive factual showing of a parent's inability to provide proper care fora child before applying the doctrine. /50/

Whether the child is exposed to drugs or infected with HIV or both, the determinative factorsshould be the parent's ability and willingness to provide appropriate care for the child. In somecases, these children are abandoned in hospitals; in others, the parent is so incapacitated by herown substance abuse /51/ or illness with AIDS /52/ that she is either temporarily orpermanently unable to care for her child. These factors would be relevant to a determination ofwhether the court should assume jurisdiction of the child.

VI. Reasonable Efforts

Before a court can make such a determination and conclude that jurisdiction and perhaps evenremoval of the child is appropriate, however, it must consider whether "reasonable efforts"have been made to keep the family together. Federal law requires that before children areremoved from their homes and after they are placed in foster care, reasonable efforts must bemade in each case to prevent the necessity for placement and to reunify the child with thefamily. /53/ There is no exception for cases of drug exposure or HIV infection. Insofar as aparent's incapacity or unwillingness to care for her children is related to her own medicalproblems--chemical dependency or AIDS or both--the court should consider whether treatmentfor the parent would be appropriate as a "reasonable effort" to keep the family together.

Access to substance abuse treatment programs is extremely limited for pregnant women andmothers of newborn infants. In the hospital survey recently conducted by the House SelectCommittee on Children, Youth and Families, two-thirds of the hospitals reported that they

could find no place to refer these women for treatment. /54/ When appropriate treatment isotherwise unavailable, some legal experts have suggested that courts should consider orderingthe child welfare agency to pay for or provide this treatment as part of its "reasonable efforts"obligation. /55/

Treatment for HIV is not always available to infected women. Some treatments are availableonly through clinical trials and research protocols. Treatment of AIDS and HIV disease isextremely expensive and states vary significantly in the extent to which they cover the cost ofHIV treatment for low-income infected individuals. /56/

While it may not be fiscally possible or appropriate for child welfare agencies to finance fullythe medical treatment for HIV-infected or chemically dependent women who would otherwiselose custody of their children, some level of assistance in ensuring that they receive a range ofnecessary services related to their health condition would be appropriate as part of theirreasonable efforts obligation. /57/ A few courts and child welfare agencies have begun todevelop protocols and plans for expanding the delivery of services designed to avoid thenecessity for foster care placement and to enable chemically dependent women to maintain orregain custody of their children. /58/

VII. Barriers to Placement

Many drug-exposed and HIV-infected infants are abandoned by their parents; others requireout-of-home placement because their families are not able to care for them. These children,sometimes referred to as "boarder babies," often linger in hospitals for months before they areplaced in appropriate settings. /59/

Child welfare caseloads have risen with the increased incidence of reported drug exposure andsome child welfare agencies report that cases of drug-exposed newborns require moresupervision, staff time, and financial resources than other cases. /60/ Emergency foster homesand shelter care facilities are full and overflowing, and there is a particular shortage ofspecialized foster homes.

In addition to the limited resources of child welfare agencies, some specific legal barriersimpede placement of children with special medical needs, including drug-exposed and HIV-infected infants. For example, licensing regulations and foster parent screening requirementsdesigned to prevent abuse in out-of-home care may exacerbate the difficulty of findingplacements.

In California, prior to recent statutory changes, foster family homes were only licensed toprovide nonmedical residential care. /61/ Therefore, the state licensing authorities objected tothe placement of children with special medical needs in foster family homes. In 1988, a specialtask force concluded that new licensing provisions were not necessary and recommendedspecialized training for foster parents and a team approach to caring for children with specialmedical needs. /62/ New legislation authorizes placement of these children in foster homeswith specially trained foster parents /63/ and permits licensed home health agencies to providein-home medical care and home- and community-based services to foster children. /64/ Other

new legislation requires the development of a program for the establishment of foster homesfor children with special medical needs. /65/ San Francisco already has a special program,known as the "Baby Moms" Program, for children who are drug-exposed or HIV-infected. /66/

In New York, two lawsuits have been filed challenging the failure to provide appropriateplacements for "boarder babies." The first case alleged that placing indefinite "holds" /67/ onnewborns whenever drug use was suspected and failing to place children in appropriatesettings when they could not return home violated their constitutional and statutory rights. /68/The case resulted in a settlement designed to ensure that all boarder babies are removed fromthe hospital and placed in noninstitutional settings within seven days after they are medicallyclear for discharge. /69/ A second lawsuit, filed to address the problem of boarder babies withspecial medical needs, /70/ has already reduced the length of hospital stays for these childrenfrom several months to a few weeks even before the case has been resolved. /71/

VIII. Discrimination

Children born exposed to drugs or infected with HIV risk discrimination in access to necessaryservices, including day care, foster care, medical care, and schools. A broad range of federaland state statutes may be used on behalf of these children. /72/ These provisions include theRehabilitation Act of 1973, the Education for All Handicapped Children Act (Pub. L. No. 94-142), the Fair Housing Amendments of 1988, and state laws protecting persons withdisabilities. /73/

Each case of actual or potential discrimination against a child infected with HIV requires aseparate and detailed analysis. However, at least two basic principles are clear. First, courts arerelying heavily on medical information about the risk of transmission of the virus in evaluatingthe legality of attempts to exclude HIV-infected children from various programs or settings./74/ Second, any automatic exclusion based on HIV status without analysis of the individualchild's behavior and risk of transmitting the virus would likely violate one or more of theexisting antidiscrimination provisions. Recent evidence confirming the low risk of transmissionthrough casual contact, even close contact with infants who cannot control their bodilysecretions, serves to strengthen these principles. /75/

So far, more legal analysis and litigation has focused on the application of these laws toindividuals with AIDS or HIV infection than to drug-exposed infants. Nevertheless, insofar assome drug-exposed infants suffer from physical or developmental handicaps, they too maybenefit from the protection of some antidiscrimination laws.

IX. Health Care and Related Service Needs

Even assuming the removal of many of the artificial barriers posed by discrimination, manyinfants born exposed to drugs or infected with HIV will be unable to obtain the services thatthey need because the programs to provide these services do not exist or funding to pay forthem is limited. The range of services needed--particularly for drug-exposed infants--is not

fully known, but it is clear that in addition to medical care they will need a continuum of otherservices. /76/

Medicaid is available to pay for the medical care of those children who meet the eligibilityrequirements. There are, however, significant gaps in the coverage provided by Medicaid.Many poor and low-income children cannot qualify for Medicaid due to restrictive eligibilitycriteria. /77/ Medicaid coverage for expensive new treatments such as AZT varies from state tostate /78/ and, in many states, Medicaid does not pay for many of the health-related services,such as home nursing and respite care, that are essential to this population.

At least one state has opted to provide coverage for the costs of medical treatment for HIVinfection under its Title V Maternal and Child Health program of Services for Children withSpecial Medical Needs. California Children's Services (CCS) pays for diagnostic proceduresnecessary to determine the presence of HIV infection for any child up to age 21, without regardto family income, and also pays for treatment of HIV infection for children meeting incomeeligibility guidelines. /79/ CCS does not pay for a broad range of health-related, nonmedicalservices, however, and its coverage is not available based on prenatal drug exposure.

Congress has given the states authority to seek "waivers" of certain federal Medicaidrequirements in order to expand the availability of home- and community-based services, suchas respite care, homemakers, nursing, and transportation, when those services would be lessexpensive than institutional care. While these waivers can provide important benefits for asmall group of very sick children, restrictive requirements make them less suited to meeting theservice needs of a broader range of drug-exposed infants. /80/

A small number of states have obtained waivers to provide health care and related services forpersons with HIV infection. /81/ Because the adult criteria for an AIDS diagnosis areinappropriate for children, some children who are sick as a result of HIV infection but whohave not been diagnosed with AIDS /82/ may be unable to qualify under these waivers.Authority for a new waiver--to serve drug-exposed and HIV-positive foster children under agefive--was enacted in 1988. /83/ Thus far, however, no state has applied for this new waiver./84/

Many services needed by children born exposed to drugs or infected with HIV are not likely tobe available under programs designed to finance health care and medical services. Alternativesources of funding for these services may include child welfare programs, /85/ earlyintervention and special education programs, /86/ and other programs for the disabled, as wellas targeted programs that may be designed in the future. In 1988, for example, Congressenacted the Abandoned Infants Assistance Act /87/ to encourage the provision of socialservices that would facilitate the removal of "boarder babies" from hospitals.

X. Conclusion

Understanding the medical, psychosocial, ethical, and legal issues involved in meeting theneeds of infants born exposed to drugs and infected with HIV is a major new challenge forchildren's attorneys and other advocates. The problems are not dissimilar to those of many

children involved in the child welfare system, but they have new complexities and addeddimensions. It is essential for children's attorneys to meet this new challenge in order to protectthe rights of thousands of vulnerable children in the coming decades.

footnotes

1. In an effort to begin the process of clarifying the issues with respect to drug exposure ininfants, the National Center for Youth Law (NCYL) published a special issue of Youth LawNews (Vol. IX, No. 1, 1990) devoted entirely to the subject. The special issue includes articleson the limits of knowledge about the incidence of drug exposure and the service needs of drug-exposed infants, child abuse reporting, juvenile court dependency proceedings, treatmentprograms for drug dependent women and their children, foster care placement, Medicaidwaivers, and early intervention programs. Copies of the special issue may be obtained bycontacting Marcia Henry, Editor, Youth Law News, at NCYL, 1663 Mission St., 5th Fl., SanFrancisco, CA 94103.

During late 1989 and early 1990, NCYL conducted a survey of the HIV policies of the publicchild welfare agencies of all 50 states. A report analyzing the policies with respect to HIVtesting, confidentiality, placement, services to foster parents, biological parents, and children,health care, and financial benefits will be available during early fall 1990.

2. Nat'l Ass'n for Perinatal Addiction Research & Educ. (NAPARE), A First Look: NationalHospital Incidence Survey (Aug. 1988); see also, Chasnoff, Drug Use and Women:Establishing a Standard of Care, 562 ANNALS OF THE N.Y. ACADEMY OF SCIENCES208 (1989). Drugs were broadly defined as heroin, methadone, cocaine (including crack),amphetamines, PCP, and marijuana; alcohol was not included, although fetal alcohol syndromecan involve severe harm to a child.

3. "Principal Findings on Addicted Infants and Their Mothers: Select Committee on Children,Youth, and Families' Staff Survey," in Hearing Summary, Born Hooked: Confronting theImpact of Perinatal Substance Abuse, Select Committee on Children, Youth and Families,101st Cong., 1st Sess. (Apr. 27, l989).

4. See French, Rise in Babies Hurt By Drugs Is Predicted: 5 Percent in New York City CouldNeed Care by '95, N.Y. Times, Oct. 18, 1989, at B1-2 (New York City Health Departmentestimates births to substance-abusing mothers increased 30-fold over ten years); TheIncreasing Number of Drug Exposed Infants, 1 SPECIAL CARE: CALIFORNIA'SCHILDREN IN FOSTER CARE WITH SPECIAL MEDICAL CARE NEEDS No. 1(Children's Research Inst. of Cal. Apr. 1989) (San Francisco General Hospital experienced a300 percent increase in newborns testing positive for drugs between 1983 and 1986).

5. Office of the Inspector Gen., HHS, Crack Babies 3 (Feb. 1990) (draft). The cities includedin the survey were Chicago, Fort Wayne, Los Angeles, Miami, New York City, Newark,Oakland, Philadelphia, Phoenix, San Francisco, Tacoma, and Washington, D.C. The 200

respondents included child welfare administrators and caseworkers, hospital social servicesstaff, private agency representatives, foster parents, and state and local officials. Id. at 2.

6. Current estimates suggest that in 1988 the total size of the foster care population wasapproximately 340,300 children compared to 276,000 in 1985. HOUSE SELECTCOMMITTEE ON CHILDREN, YOUTH, & FAMILIES, NO PLACE TO CALL HOME:DISCARDED CHILDREN IN AMERICA, H.R. REP. NO. 395, 101ST CONG. 2D SESS.(Jan. 12, 1990).

7. E.g., Weston, Evins, Zuckerman, Jones, & Lopez, Drug Exposed Babies: Research andClinical Issues, 9 ZERO TO THREE 1 (June 1989) [hereinafter Weston].

8. Besharov, The Children of Crack: Will We Protect Them? PUB. WELFARE 6 (Fall 1989).This smaller estimate is also not based on "hard" data.

9. Lockwood, What's Known--and What's Not Known--About Drug- Exposed Infants, 11YOUTH L. NEWS 15 (Special Issue 1990). These variables include: inaccurate self-reportsconcerning drug use; false positive and false negative results of toxicology tests; limitedapplicability of animal studies; impact of prenatal factors such as nutrition, prenatal care, andcoexisting diseases; impact of postnatal factors such as social and physical environment, healthcare, and other services; demographic differences between public and private hospitalpopulations; poly-drug use; and variation in effects of different drugs. S. Lockwood, ThrowingAway the Key: The Trend Toward Criminal Sanctions Against Drug-Abusing PregnantWomen (May 1990) (Master's thesis, U.C.-Berkeley, School of Social Welfare) (copy on filewith NCYL).

10. For example, the Besharov estimate of 50,000 births per year is not a comparable figure tothe NAPARE estimate because it refers to cocaine exposure rather than the larger number ofdrugs included in the NAPARE estimate. However, the NAPARE estimate is ofteninappropriately cited in articles about babies born exposed to crack cocaine.

11. See Weston, supra note 7. Experts suggest that the severity of effects fall on a bell-shapedcurve, with a very small number of children showing either minimal effects or very severeeffects, and a much larger number distributed in the middle.

12. See Adams, Gfroerer, & Rouse, Epidemiology of Substance Abuse Including Alcohol andCigarette Smoke, 562 ANNALS OF N.Y. ACADEMY OF SCIENCE 14 (1989).

13. CENTERS FOR DISEASE CONTROL, PUBLIC HEALTH SERVICE, HHS, HIV/AIDSSURVEILLANCE, at p. 8, table 3 (June 1990) [hereinafter HIV/AIDS SURVEILLANCE].

14. Id. at 12, table 7.

15. Novello, Wise, Willoughby, & Pizzo, Final Report of the United States Department ofHealth and Human Services Secretary's Work Group on Pediatric Human ImmunodeficiencyVirus Infection and Disease: Content and Implications, 84 PEDIATRICS 547 (1989)[hereinafter Novello].

16. A high incidence of infectious diseases such AIDS, hepatitis, and sexually transmitteddiseases has been found among pregnant women who are dependent on cocaine. MacGregor,Keith, & Chasnoff, Cocaine Use During Pregnancy: Adverse Perinatal Outcome, 157 AM. J.OBSTETRICS & GYNECOLOGY 686 (1987).

17. Novello, supra note 15. Cooper, Pelton, & LeMay, Acquired ImmunodeficiencySyndrome: A New Population of Children at Risk, 35 PEDIATRIC CLINICS OF N. AM.1365 (1988) [hereinafter Cooper].

18. Report of the Second Public Health Service AIDS Prevention and Control Conference--Cross-Cutting Issues, 102 PUB. HEALTH REPORTS 88 (1988).

19. Novello, supra note 15.

20. HIV/AIDS SURVEILLANCE, supra note 13, at 13, table 8. So far, more than half of thechildren with AIDS reported to the CDC are known to have died: 1,239 deaths out of 2,315cases.

21. CHILD WELFARE LEAGUE OF AM., SERVING HIV-INFECTED CHILDREN ANDTHEIR FAMILIES: A GUIDE FOR RESIDENTIAL GROUP CARE PROVIDERS 7 (1989)[hereinafter CWLA RESIDENTIAL CARE GUIDELINES]. Early and intensive medical carecan prevent death from one of the many treatable infections that affect HIV-infected infants. Id.In addition, AZT has been shown in clinical trials to help infected children by modifying thecourse of HIV infection. Pizzo, Eddy, & Faloon, Acquired Immunodeficiency Syndrome inChildren: Current Problems and Therapeutic Considerations, 85 AM. J. MED. 195 (1988).

22. For a brief discussion of the risks of discrimination against infants who are identified asdrug-exposed, see English & Henry, Legal Issues Affecting Drug-Exposed Infants, 11YOUTH L. NEWS 1 (Special Issue 1990).

23. Provisional Comm. on Substance Abuse, Am. Academy of Pediatrics, Drug ExposedInfants, (Mar. 2, 1990) (forthcoming PEDIATRICS (Oct. 1990)) [hereinafter AAP ProvisionalCommittee].

24. The same statute also requires testing of pregnant women. MINN. STAT. ANN. Sec.626.5562(1) & (2) (West Supp. 1990).

25. See Annotation, Power of Court or Other Public Agency to Order Medical Treatment forChild Over Parental Objections Not Based on Religious Grounds, 97 A.L.R.3d 421 (1980);SENATE OFFICE OF RESEARCH, CAL. LEGISLATURE, CALIFORNIA'S DRUG-EXPOSED BABIES: UNDISCOVERED, UNREPORTED, UNDERSERVED, ACOUNTY-BY-COUNTY SURVEY 32 (July 1990)..

26. Moss, Legal Issues: Drug Testing of Postpartum Women and Newborns as the Basis forCivil and Criminal Proceedings, 23 CLEARINGHOUSE REV. 1406 (Mar. 1990).

27. WIS. STAT. ANN. Sec. 146.0255(2) (West Supp. 1990).

28. See English, Prenatal Drug Exposure: Grounds for Mandatory Child Abuse Reports? 11YOUTH L. NEWS 3 (Special Issue 1990).

29. FLA. STAT. ANN. Sec. 415.503(8)(a)(2) (West Supp. 1989); MASS. GEN. LAWSANN. ch. 119, Sec. 51A (West Supp. 1989); OKLA. STAT. ANN. tit. 21, Sec. 846(A) (WestSupp. 1988); UTAH CODE ANN. Sec. 78-36-3.5 (Supp. 1989).

30. ILL. REV. STAT. ch. 23, para. 2053 (1989); MINN. STAT. ANN. Sec. 626.5562(2)(West Supp. 1990); WIS. STAT. ANN. Sec. 146.0255(2) (West Supp. 1990); see also In reTroy D., 215 Cal. App. 3d 889, 263 Cal. Rptr. 869 (Cal. Dist. Ct. App. 1989) (reportmandatory whenever positive toxicology test leads hospital social worker to form reasonablesuspicion of abuse or neglect) (Clearinghouse No. 45,549).

31. Weston, supra note 7, at 3.

32. Manno, Interpretation of Urinalysis Results, reprinted in NAT'L INST. ON DRUGABUSE, RESEARCH MONOGRAPH 73, URINE TESTING FOR DRUGS OF ABUSE 55(1986).

33. Weston, supra note 7, at 5.

34. Chasnoff, Landress, & Barrett, The Prevalence of Illicit Drug or Alcohol Use DuringPregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida, 322 NEWENG. J. OF MED. 1202 (1990).

35. For a general discussion of legal issues related to HIV testing, see HIV Testing, MedicalTreatment, and Informed Consent, in S. RENNERT, J. PARRY, R. HOROWITZ, AIDS ANDPERSONS WITH DEVELOPMENTAL DISABILITIES: THE LEGAL PERSPECTIVE 37-54 (1989) [hereinafter RENNERT].

36. Cooper, supra note 17.

37. CWLA RESIDENTIAL CARE GUIDELINES, supra note 21, at 6; CHILD WELFARELEAGUE OF AM., REPORT OF THE CWLA TASK FORCE ON CHILDREN AND HIVINFECTION: INITIAL GUIDELINES (1989).

38. E.g., CAL. HEALTH & SAFETY CODE, Sec. 199.28 (West Supp. 1990). At least 20states currently require informed consent for an HIV test. Gostin, Public Health Strategies forConfronting AIDS: Legislative and Regulatory Policy in the United States, 261 J. A.M.A. 1621(1989).

39. E.g., CAL. HEALTH & SAFETY CODE, Sec. 199.28 (West Supp. 1990).

40. Gostin, supra note 38.

41. These laws by themselves may not provide adequate protection for information as sensitiveas HIV-related information. S. RENNERT, supra note 35, at 57.

42. See, e.g., Monmaney, Kids with AIDS, NEWSWEEK (Sept. 7, l987).

43. McNulty, Pregnancy Police: The Health Policy and Legal Implications of PunishingPregnant Women for Harm to their Fetuses, 16 N.Y.U. REV. L. & SOC. CHANGE 277(1987-88). Thus far, legislators at the state and federal level have moved slowly in enactinglegislation expressly imposing criminal sanctions on women for harm to their fetuses resultingfrom drug or alcohol use during pregnancy. See Thomas, Key Battle in War on Drugs: SavingPregnant Women, Endangered Babies, 104 STATE HEALTH NOTES 1 (June 1990); see alsoK. MOSS & ACLU WOMEN'S RIGHTS PROJECT, STATE SURVEY: LEGISLATIONPERTAINING TO DRUG USE DURING PREGNANCY (Apr. 1990) (copy on file withNCYL). The Child Abuse During Pregnancy Prevention Act, S. 1444, 101st Cong., 1st Sess.(introduced Aug. 1, 1989), would provide $50 million for comprehensive state residentialprojects, but only on condition that states receiving the funds make it a crime to give birth to adrug-exposed infant; thus far the Act has failed to secure passage. For a discussion of this andother federal initiatives, see T. Ooms & L. Herendeen, Drugs, Mothers, Kids and Ways toCope (1990) (report of a policy seminar conducted by the Family Impact Seminar, Am. Ass'nfor Marriage & Family Therapy, Research & Educ. Found., Washington, D.C.).

44. Criminal prosecutions have been filed in Alabama, California, Connecticut, the District ofColumbia, Florida, Georgia, Illinois, Indiana, Massachusetts, Michigan, Nevada, NorthCarolina, Ohio, South Carolina, South Dakota, Texas, and Wyoming. ACLUREPRODUCTIVE FREEDOM PROJECT & ACLU WOMEN'S RIGHTS PROJECT,STATE BY STATE CASE SUMMARY OF CRIMINAL PROSECUTIONS AGAINSTPREGNANT WOMEN (Apr. 1990) (copy on file with NCYL).

45. AAP Provisional Committee, supra note 23, at 7.

46. MacGregor, Keith, Bachicha, & Chasnoff, Cocaine Abuse During Pregnancy: CorrelationBetween Prenatal Care and Perinatal Outcome, 74 OBSTETRICS & GYNECOLOGY 882(1989).

47. See Grimm, Drug-Exposed Infants Pose New Problems for Juvenile Courts, 11 YOUTHL. NEWS 9 (Special Issue 1990); CENTER ON CHILDREN & THE LAW, ABA, DRUGEXPOSED INFANTS AND THEIR FAMILIES: COORDINATING RESPONSES OF THELEGAL, MEDICAL, AND CHILD PROTECTION SYSTEM, Appendix A (Civil CasesRelating to Drug-Exposed Children and their Families) (1990).

48. Troy D., 215 Cal. App. 3d 889 (affirming the overruling of mother's demurrer objecting tosufficiency of dependency petition that alleged only that child was born under the influence of adangerous drug); In re Stefanel Tyesha C. & In re Sebastian M., N.Y.L.J., May 31, 1990, at21, col. 4 (N.Y. App. Div. May 29, 1990) (cause of action for neglect stated by petitionalleging mothers' admitted drug use during pregnancy, children's positive toxicology forcocaine, and mothers' failure to enroll in drug treatment). See also New York Dep't of SocialServs. ex rel. Mark S. v. Felicia B., 543 N.Y.S.2d 637 (N.Y. Fam. Ct. 1989) (neglect finding

possible for child born alive who was exposed to cocaine in utero). For a more extensivediscussion of Troy D., see Grimm, supra note 47.

49. See In re Baby X., 97 Mich. App. 111, 293 N.W.2d 736, 739 (Mich. Ct. App. 1980)("since prior treatment of one child can support neglect allegations regarding another child, . . .prenatal treatment can be considered probative of a child's neglect as well") (Clearinghouse No.30,193); In re Fletcher, 141 Misc. 2d 333, 533 N.Y.S.2d 241 (N.Y. Fam. Ct. 1988) (prenataldrug use could be factor in cases of addiction or direct connection between drug use and safetyof child).

50. See Grimm, supra note 47.

51. See CAL. WELF. & INST. CODE Sec. 300(b) (West Supp. 1990) (minor has suffered, orthere is substantial risk that minor will suffer, serious physical harm or illness by inability ofparent to provide regular care due to parent's substance abuse).

52. A parent who is HIV-infected should not be deprived of custody based upon that status,unless she is unable or unwilling to care for her child. See Palash, Custody, Visitation, andAIDS, in AIDSLAW (C. Hockenberry, ed., San Francisco: AIDS Legal Referral Panel, 1988).

53. 42 U.S.C. Sec. 671(a)(15); see 42 U.S.C. Sec. 672(a); see NAT'L COUNCIL OFJUVENILE & FAMILY COURT JUDGES, CHILD WELFARE LEAGUE OF AM.,YOUTH LAW CENTER & NCYL, MAKING REASONABLE EFFORTS: STEPS FORKEEPING FAMILIES TOGETHER (New York: Edna McConnell Clark Found. 1987); D.RATTERMAN, G. DODSON & M. HARDIN, REASONABLE EFFORTS TO PREVENTFOSTER PLACEMENT: A GUIDE TO IMPLEMENTATION (ABA l987).

54. House Select Committee, supra note 6; see McNulty, supra note 43; McNulty, CombattingPregnancy Discrimination in Access to Substance Abuse Treatment for Low-Income Women,23 CLEARINGHOUSE REV. 21 (1989).

55. See Grimm, supra note 47.

56. For a discussion of the federal and state initiatives that have been undertaken so far to payfor HIV treatment, see Fox, Financing Health Care for Persons with HIV Infection: Guidelinesfor State Action, 16 AM. J. L. & MEDICINE 223 (1990); for a discussion of the impact bothof increasing numbers of infected minorities, women, and children and of the trend towardearlier treatment of HIV on the future costs of treatment, see Scitovsky, Studying the Cost ofHIV-related Illnesses: Reflection on the Moving Target, 67 MILLBANK QUARTERLY 318(1989).

57. A number of programs nationwide are recognized as models in providing treatment fordrug-dependent women and their children. In 1989, the Center for the Vulnerable Child atChildren's Hospital, Oakland, conducted a survey of ten such programs. See Jameson &Halfon, Treatment Programs for Drug-Dependent Women and Their Children, 11 YOUTH L.NEWS 20 (Special Issue 1990). One of the projects surveyed, Project Star in Boston,Massachusetts, provides intensive case management for cases in which children are both drug-

exposed and HIV-infected. In some cases, when mothers are dying, the case manager's role isto promote efforts to maintain the extended rather than the nuclear family.

58. See P. Boland & J.L. Henning, Decision-making Protocols for Drug-related DependencyCases (Memo of Presiding Judge Boland & Supervising Judge Henning, Juvenile Dep't,Superior Court of Los Angeles County Jan. 12, 1990); BUREAU OF DRUG ABUSESERVS., SANTA CLARA COUNTY HEALTH DEP'T, SUBSTANCE EXPOSEDNEWBORNS: A RECOMMENDED PLAN OF ACTION FOR SANTA CLARA COUNTY(Aug. 1989).

59. Bussiere & Shauffer, The Little Prisoners, 11 YOUTH L. NEWS 22 (Special Issue 1990).

60. Id.; Office of Inspector Gen., supra note 5.

61. CAL. HEALTH & SAFETY CODE Sec. 1502(a) (West Supp. 1990).

62. TASK FORCE ON FOSTER CARE FOR CHILDREN WITH SPECIAL MEDICALNEEDS, REPORT TO THE LEGISLATURE ON FOSTER CARE FOR CHILDREN WITHSPECIAL MEDICAL NEEDS (Apr. 1988).

63. CAL. WELF. & INST. CODE Sec. 17736 (West Supp. 1990).

64. CAL. HEALTH & SAFETY CODE Sec. 1507.5 (West Supp. 1990).

65. CAL. WELF. & INST. CODE Sec. 17700-17738 (West Supp. 1990).

66. See "Baby Moms" Program for Medically At Risk Infants, FOSTER CARE NETWORKNEWS (Mar./Apr. 1988).

67. When a child is abandoned in a hospital, or hospital personnel suspect that the child is atrisk of abuse or neglect, a report to child welfare or law enforcement may result in a "hold"being placed on the child, which prevents removal of the child from the hospital without theapproval of the authorities.

68. Baby Jennifer v. Koch, No. 86 Civ. 9676 (S.D.N.Y. amended complaint filed Mar. 10,1987).

69. Id., Stipulation & Order of Settlement (approved June 4, 1987).

70. Baby Angel v. Koch, No. 89 Civ. 4770-VLB (S.D.N.Y. filed July, 1989).

71. Bussiere & Shauffer, supra note 59.

72. See English, Jameson, & Warboys, Legal Issues in Pediatric and Adolescent AIDS, inAIDSLAW, supra note 52.

73. See Antidiscrimination Statutes, in RENNERT, supra note 35, at 13-36.

74. See, e.g., Martinez v. School Bd. of Hillsborough County, Fla., 711 F. Supp. 1066 (M.D.Fla. 1989).

75. Rogers, White, Sanders, Schable, Ksell, Wasserman, Bellanti, Peters, & Ray, Lack ofTransmission of Human Immunodeficiency Virus From Infected Children to Their HouseholdContacts, 85 PEDIATRICS 210 (1990).

76. See Lockwood, supra note 9; U.S. GEN. ACCOUNTING OFFICE, PEDIATRIC AIDS:HEALTH AND SOCIAL SERVICE NEEDS OF INFANTS AND CHILDREN (1989);SECRETARY'S WORK GROUP ON PEDIATRIC HIV INFECTION AND DISEASE,HHS, FINAL REPORT (1989).

77. See, e.g., Jameson, Health Care for Low Income Children, in M. SOLER, J. BELL, E.JAMESON, C. SHAUFFER, A. SHOTTON, L. WARBOYS, REPRESENTING THECHILD CLIENT (Matthew Bender 1989).

78. Fox, supra note 56.

79. CAL. CHILDREN'S SERVS. (CCS), CAL. DEP'T OF HEALTH SERVS., CCS HIVCHILDREN'S PROGRAM: GUIDELINES (Nov. 1988).

80. See Dunn-Malholtra, Medicaid Waivers Fail to Meet Needs of Most Children, 11 YOUTHL. NEWS 27 (Special Issue 1990).

81. U.S. GEN. ACCOUNTING OFFICE, supra note 76; Fox, supra note 56.

82. See Novello, supra note 15; Cooper, supra note 17.

83. 42 U.S.C. Sec. 1396n(e). See Pub. L. No. 100-360, Sec. 411(a)(2), 102 Stat. 683, 768(1988).

84. Dunn-Malholtra, supra note 80.

85. E.g., Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. Secs. 620 et seq., 670et seq.

86. See Morrow, Early Intervention Programs May Help Drug- Exposed Children, 11 YOUTHL. NEWS 31 (Special Issue 1990).

87. Abandoned Infants Assistance Act, Pub. L. No. 100-505, 102 Stat. 2533 (Oct. 18, 1988).In l989, Congress appropriated approximately $4 million for services under this Act.