Chapter 5 - Ethical and Legal Guidelines

This chapter includes specific guidelines in the following areas: assessment of mothers and newborns; confidentiality of information about treatment for drug and alcohol abuse; issues arising during postneonatal followup of the drug-exposed infant; and training in ethical and legal issues. However, throughout this chapter, it should be kept in mind that AOD addiction is fundamentally a medical, not a legal, issue.

As a foundation for these guidelines, the following principles are enunciated:

1. The ethical principle of respect for persons makes the woman the autonomous decisionmaker for herself and her fetus, which is undeniably part of her body. A pregnant woman and her fetus ought to be thought of as a unit, or dyad, and intervention strategies during pregnancy ought to benefit both the woman and the fetus.
2. The ethical principle of beneficence requires an individual to act in a manner that maximizes good consequences and minimizes harm to another. Women who are pregnant have obligations of beneficence to their fetuses.
3. Society in general, and health care professionals in particular, have obligations of beneficence to both the woman and fetus as well as the preservation of the family. These obligations include provision of comprehensive, multiservice, community-based, gender-specific programs that are accessible and affordable.
4. Involuntary civil commitment, criminal prosecution, or use of civil child protective service interventions for a pregnant woman, ostensibly to benefit the fetus, should not be used. Decisions concerning the incarceration of a pregnant, substance-using woman should be made only on the basis of an offense, and should not be related to pregnancy and substance abuse. If a pregnant, substance-using woman is incarcerated, adequate drug treatment and all necessary medical care must be provided.
5. If a pregnant, substance-using woman is eligible for a diversion program for a crime unrelated to drug use during pregnancy, this alternative should be encouraged and should provide comprehensive, gender-specific, multiservice treatment to enhance the health of the woman and the development of the fetus.
6. After birth, intervention strategies should continue to be designed to benefit the mother-infant dyad. There should be a strong presumption in favor of maintaining the mother-child relationship, and the right of the mother as decisionmaker for the child, unless the mother is not acting in the best interest of the child.
7. Treatment for the father of a drug-exposed infant should be available in the same program when appropriate, or in a different program. It may be therapeutically contraindicated for the parents of the drug-exposed child to receive treatment in the same program. For example, if the mother is engaged in treatment and is drug free while the father continues to use drugs, it is probably more appropriate for the father to be in a different treatment program. If the father is substance-using himself, then treatment should be made available to him as well. Every effort to strengthen and maintain the family as a unit should be considered in providing services to the pregnant, substance-using woman and the mother-infant dyad.
8. In designing programs and providing services, agencies and individual providers must adhere to Federal and State laws. Because these laws are subject to change, programs and services need to be reviewed periodically by the provider's legal counsel.