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Logo of nihpaAbout Author manuscriptsSubmit a manuscriptHHS Public Access; Author Manuscript; Accepted for publication in peer reviewed journal;
J Ark Med Soc. Author manuscript; available in PMC 2014 June 9.
Published in final edited form as:
J Ark Med Soc. 2011 November; 108(6): 123–124.
PMCID: PMC4049518

Ethical, Legal and Policy Issues in Management of Fetal Alcohol Spectrum Disorder

Chris Hackler, PhD, Professor and Director


Alcohol use during pregnancy may have severe and lasting effects on the developing fetus. Unfortunately it is often difficult to detect and address maternal drinking, as previous articles in this series have demonstrated. The difficulty is only compounded by a number of ethical quandaries and legal concerns. Underlying most of these concerns is a particularly agonizing conflict of obligations: to protect vulnerable, nascent human life on the one hand, and to preserve the privacy, dignity, and trust of one’s patient on the other.


Drinking alcohol during pregnancy is the leading known preventable cause of mental retardation and birth defects.1 It is clear that drinking while pregnant increases the risk of serious damage to the fetus, and there is no known safe level of alcohol consumption at any time during pregnancy. It is even possible that as little as one drink a week could increase the chances of growth retardation or mental health problems.2

The obstetrician or family physician who suspects that a pregnant patient is drinking will feel the need to intervene in some way to protect the developing baby. While the mother is the patient, the physician has some responsibility for the welfare of the baby, and in this sense the doctor may be said to have two patients. Informing the mother about the risk to her baby may well be sufficient, as there is still widespread ignorance on the subject. With rare exceptions, men and women care deeply about their offspring and will make considerable sacrifices for their welfare.

Occasionally, however, even loving and well-meaning parents have developed an addiction or otherwise lost control over their use of alcohol. In such cases education is not reliable, and physicians will need to look for other ways to protect the interests of the developing child. They may look to other individuals for help, perhaps a spouse, a substance abuse counselor, or even a law enforcement officer. Unless the patient agrees to allow such contact, however, the patient’s right to privacy and confidentiality could be violated.

Privacy and Confidentiality

Respecting patient confidentiality has been a central tenet of medical ethics since the ancient Oath of Hippocrates. Patients need to know that their doctor will keep what they are told in confidence. Otherwise they will not feel free to divulge embarrassing and perhaps shameful secrets that are necessary for accurate diagnosis and treatment. Preserving confidentiality recognizes the dignity of the individual patient and fosters trust, a relationship that has therapeutic value as well as intrinsic moral value. Patients who are unsure of confidentiality may not even seek medical help. Thus confidentiality is strongly justified not only by the weight of tradition, but by rational reflection as well.

Although the duty of confidentiality is especially strong, there are recognized exceptions. Reporting of certain conditions, such as gunshot wounds and some communicable diseases, is required by statutory law. Case law has upheld a duty to break confidentiality if necessary to protect another individual from a serious harm. The AMA Code of Ethics also recognizes such an exception. This countervailing duty to protect others is difficult to define and thus is subject to interpretation. It is strongest when there is likelihood of an action that would cause serious bodily harm to an identifiable individual. Would it encompass a duty to report behavior that might imperil a fetus (identifiable but not yet born) that the woman herself is carrying? From a legal perspective there is no clear answer to this question unless these are statutes that address the matter.

Legal Basis for Intervention

The Arkansas legislature in 2005 adopted Act 1176, popularly known as Garrett’s Law, which allowed hospital testing of newborns whose mothers were suspected of using illegal drugs such as methamphetamines during pregnancy. The law mandated reporting of mothers if their newborn tested positive for illegal substances, or if the newborn had a health problem that was suspected to have been caused by use of an illegal drug during pregnancy. In addition, the mother was considered under the law to be guilty of child maltreatment. The law was amended in 2007 to allow testing of the mother as well as the child and to give social workers the authority to report. Automatic placement of the mother on the maltreatment registry was repealed. Additional grounds (other than a positive drug test) are now required for registry placement or out-of-home placement of the child.

While Garrett’s Law provides authority for reporting maternal drug use, it is of limited, if any, relevance to the problem of FASD. Alcohol is indeed the substance most commonly found in post-natal drug tests. Since the law is directed at illegal drugs, however, and alcohol is a legal substance, its use is not reportable under this statute. The most frequently detected illegal substance is marijuana (about half of all referrals), which apparently has significantly less potential for damage to the developing infant than alcohol or other illegal drugs such as cocaine or amphetamines (about 25% of referrals.) There are other limitations to the law as well. The statute authorizes reporting of mothers after birth, when the damages of alcohol use have already been done. Moreover, it appears that a small minority (no more than 20%) of mothers who are reported receive any kind of substance abuse treatment or parenting services, both of which would be strongly indicated to reduce the chances of a future drug-positive birth.3

Several states have attempted to act proactively to prevent or limit fetal exposure to harmful substances. South Carolina has prosecuted the largest number of women for illegal drug use while pregnant. The state’s Supreme Court determined that a fetus is a person and that a pregnant woman using drugs that are harmful to the fetus can be prosecuted for child endangerment. In one noteworthy case from South Carolina, the U.S. Supreme Court placed some limits on the state’s authority, ruling on review that a public hospital’s policy of selectively testing women for cocaine without their consent amounted to an unconstitutional search.4

Wisconsin has taken a particularly aggressive approach. Its civil commitment law allows authorities to take custody of a pregnant woman upon determination that she exhibits a “habitual lack of self-control in the use of alcoholic beverages” that poses a “substantial risk that the health of the unborn child … will be seriously affected or endangered”.5 Under the state’s juvenile court system she can be found guilty of “unborn child abuse” and committed to involuntarily inpatient care.6 About a third of the states require that medical and other professionals report positive drug tests in pregnant women and newborns to an appropriate state agency.7

Problems with Coercive Approaches

A number of professional organizations and health advocacy groups have recommended against punitive approaches to reducing drinking during pregnancy, including the American Academy of Pediatrics, the American Medical Association, the American Nurses Association, and the American Public Health Association. The American College of Obstetrics and Gynecology Committee on Ethics has issued the most detailed statement on the matter. In their view, coercion fails to respect autonomy and bodily integrity, treats medical problems such as addiction and psychiatric illness as if they were moral failings, criminalizes otherwise legal maternal behavior, and unjustly affects the most vulnerable women. The ultimate effect of punitive policies may be to discourage prenatal care and undermine the physician-patient relationship.8

A Medical and Public Health Approach

Prevention is almost always preferable to treatment. Education can be very effective, as most people are unaware of the dangers posed by prenatal drinking. Studies of Danish and British women showed that large majorities felt that drinking in pregnancy was acceptable.9 Thus women may engage in risky behavior without any awareness of the possible consequences. Moreover, drinking alcohol is a social activity, and even with such knowledge, it may be difficult to resist social pressures to “join the party”. Public health authorities are in a position to develop appropriate educational materials both for doctors’ offices and for the society at large. The message needs to be sent that “when you drink, your baby drinks”.

To be most effective, such messages should be aimed at the general population. Social norms that encourage drinking need to be altered in light of the dangers posed to pregnant women. But there is another reason: much damage can be done in the early weeks of pregnancy, when women do not even know they are pregnant. Studies have shown that “the strongest relationship between alcohol exposure and birth defects [is] the two-to-eight week period after conception”.10 Women of child-bearing age who are not using effective contraception should be aware of the dangers of drinking alcohol even before they know they are pregnant. This illustrates again why coercive approaches alone are insufficient: they are only available later in pregnancy, when much of the damage has been done. Thus early education is critical to avoiding harm.

In spite of its power, education is not always effective. Physicians may need to consider screening, counseling, and referral of addicted patients, as described in the 3rd paper in this series. In any case, a medical approach involves treating these patients with understanding, respect, and compassion. Alcohol addiction is an illness that does not respond well to moral condemnation, threats or coercion. Often it results from unresolved family, social, economic, medical, or mental health problems. Women almost never intend to harm their children. When their behavior imperils their children, we can be sure they are struggling with an exceptionally powerful compulsion, a struggle that deserves our respect and compassion.


1. (Article 1 in this series)
2. American Academy of Pediatrics, Committee on Substance Abuse and Committee on Children with Disabilities. Fetal alcohol syndrome and alcohol-related neurodevelopmental disorders. Pediatrics. 2000;106(2):358–361. [PubMed]
3. Task Force on Substance Abuse Treatment Services, a report to the Division of Children and Family Services, Arkansas Department of Health and Human Services. 2006 Nov 1;
4. Ferguson v City of Charleston 532 U S 67. 2001
5. Wis Stat Ann 48.193
6. Erin Linder. Punishing prenatal alcohol abuse: the problems inherent in utilizing civil commitment to address addiction. University of Illinois Law Review; 2005. pp. 873–902.
7. Schroedel Jean R, Fiber Pamela. Punitive versus public health oriented responses to drug use by pregnant women. Yale Journal of Health Policy, Law, and Ethics. 2001;1:217–235. See also SAMHSA. Fetal alcohol spectrum disorder related legislation by state, at [PubMed]
8. American College of Obstetricians and Gynecologists, Committee Opinion No. 321. Maternal decision making, ethics, and the law. Obstetrics and Gynecology. 2005;106:1127–1137. [PubMed]
9. Mukherjee RajaAS, Sheila Hollins, Turk J. Fetal alcohol spectrum disorder: an overview. Journal of the Royal Society of Medicine. 2006;99:298–302. [PMC free article] [PubMed]
10. Dineen Claire E. Fetal alcohol syndrome: the legal and social responses to its impact on Native Americans. 1994;(1):40. 70 N. D. Law Review, (Quoted in Linder, op.cit. note 6, 883.