To deal with an explosion in the number of Kentucky newborns exposed to dangerous, addictive drugs by their pregnant mothers, lawmakers this year added a section to House Bill 1, a measure that otherwise streamlines the foster care system.
The section — which becomes law in July, along with the rest of HB 1 — expands the definition of child abuse in Kentucky to include neonatal abstinence syndrome.
Babies born with NAS go through withdrawal while they are still in the hospital. They can experience trembling, excessive high-pitched crying, seizures, vomiting and diarrhea. Some have more serious problems, such as heart defects.
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"I hold babies at the Children's Hospital in Louisville once a week," said state Rep. Joni Jenkins, D-Shively, one of the sponsors of HB 1.
"Many of them are NAS babies. They are very unhappy babies. They are very fidgety. You try to hold them and rock them and soothe them, but — " Jenkins paused. "If you talk to the medical professionals in those cases, I can tell you, they have very distinct opinions about whether those babies should be going home with those parents."
With a finding of child abuse from NAS, termination of parental rights could follow unless the mother enrolls in a drug addiction treatment program within 90 days of the birth. At present, state caseworkers who learn of NAS make recommendations to family court judges based the circumstances of each individual case. Removing the baby is not the automatic outcome.
The number of Kentucky babies born dependent on drugs has climbed from 46 in 2001 to 1,115 in 2016, according to hospital discharge data collected annually by the Kentucky Cabinet for Health and Family Services. The opioid crisis has made the problem far worse in recent years as addiction to prescription painkillers and heroin has swept the state.
Still, various medical groups, including the American Academy of Pediatrics, have urged lawmakers not to "stigmatize" addiction for pregnant women.
Criminal or civil penalties discourage women from seeking prenatal care they need for fear of having their drug use discovered, critics say. About half of the states treat drug use during pregnancy as child abuse, according to a 2017 report from the Institute for Medicaid Innovation.
In Kentucky, Volunteers of America, which offers addiction treatment, warned Kentucky lawmakers during the 2018 legislative session that programs with vacancies aren't easily accessible to women in every community, especially those without health insurance
Backers of HB 1 said they tried to balance a number of conflicting interests to be fair, but the child's safety is paramount.
"What we want here is for the mother to be in treatment," said state Rep. David Meade, R-Stanford, the bill's lead sponsor.
"I'm sure that in most cases, the mothers will do whatever they have to do to keep their families together. In the cases where they don't make the effort, however, and there are drugs in the home, then termination proceedings would begin," Meade said.
Foster parents who care for children removed from their homes worry the new law might not be tough enough. Some of them said they have accepted multiple drug-exposed babies from the same mothers, who continued to use drugs while negotiating with caseworkers to get their children returned.
"My question would be, where do you draw the line?" asked Melinda McGuire, a foster mother in Rockcastle County. "I think it's a bad idea for us to give someone a fresh start every time when we've seen so many repeat occurrences."
"Do you get to ask them, 'Have you done this before? Is this child No. 1? Or is this child No. 3? Or is this child No. 5?'" McGuire said. "Everyone is capable of making mistakes. We all make mistakes. But we try to rectify those and do better. ... In our case, with the kids we had in this one situation, each of the first four children had been exposed, all down the line. My personal opinion is, that's not fair to the child."