Can You Test Newborns for Drugs in Texas?

In Texas, newborns cannot be tested for drugs. More on how laws can be used to bring drug use charges against mothers in TX here.

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ARTICLE OVERVIEW: Newborns are not systematically drug tested in Texas. However, consequences for substance abuse during pregnancy are described Texas Penal Code 22.041. More here on how you can lose parental rights for substance use in TX.

TABLE OF CONTENTS:

How Drugs Affect Newborns

During pregnancy, consumption of certain prescription medications and illegal drugs are not safe for both the mother and unborn baby. So, if you are planning to get pregnant or already expecting, it’s important to check with your doctor regarding prescription drugs and put an end to recreational drug use.

It’s important to understand how drugs can impact the health of a newborn before starting or continuing the use of any potentially dangerous substance. There are many short and long term risks that come with any kind of drug use during pregnancy, including:

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Marijuana: By smoking marijuana, the levels of carbon monoxide and carbon dioxide are increased, which can reduce the oxygen supply to the baby. This can result in premature births, low birth weights, delays in development, and learning and behavioral problems.

Heroin: This highly addictive drug can not only severely harm the baby while in the womb but cause them to be dependent on the drug after it is born. A newborn can go into withdrawal after birth and experience symptoms such as irritability, convulsions, and sleep abnormalities.

Cocaine: After a fetus is exposed to cocaine, it can take much longer for the drug to be eliminated from their system than it would from an adult. Using cocaine during pregnancy can lead to premature labor, restricted growth, defects and learning difficulties.

Methamphetamine: Related to amphetamines, methamphetamine can raise the heart rate of both the mother and the baby. Newborns exposed to methamphetamine can suffer withdrawal symptoms, such as sleeplessness and muscle spasms.

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PCP & LSD: As both of these drugs are hallucinogens, PCP & LSD can cause users to behave violently and self-harm, in addition to potential birth defects. PCP can lead to low birth weights, brain damage and poor muscle control, while frequent use of LSD can cause birth defects.

Neonatal Abstinence Defined

In 2014, an estimated 32,000 newborns were born with Neonatal Abstinence Syndrome, NAS, as a result of drug and opioid use during pregnancy. NAS causes a range of symptoms, including tremors and breathing problems, as the newborn withdraws from the substances they were exposed to while in the womb.

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But how can a baby ingest drugs while in utero?

When a woman takes drugs during pregnancy, the chemicals are passed through the placenta and umbilical cord to the developing fetus. Chemical dependency then forms in the child if the mother takes a psychoactive substance over and over again during her pregnancy. And dependency ends after the baby goes through withdrawal…with associated risks and dangers.

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With all of the risk that can come with drug use and pregnancy, monitoring the health of the mother and baby is a critical part of the pre and post-natal process. And part of monitoring can include drug testing.

Can You Test Newborns for Drugs in Texas?

No, Texas state law does not require drug testing in newborns. While there are no specific state laws to prosecute women who have used drugs during pregnancy, a prosecutor may be able to find ways to criminally charge the mother under other laws.

Currently, drug testing is not mandatory in every state for pregnant women and newborns. In other states, mandatory reporters must report suspected drug use in mothers, as it’s consider a form of child abuse. And in some other states, drug testing as a part of the process. For example, states such as North Dakota and Minnesota do require drug tests but only if there are drug-related complications at birth.

What Are the Laws for Prenatal Substance Abuse?

According to the Texas Penal Code 22.041:

“A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.”

Even though prenatal substance abuse is considered to be child abuse in 23 states, testing the mother and newborn is not a requirement in most states. There are many reasons testing would be provided, such as suspected prenatal drug exposure or evidence for child welfare proceedings.

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What Are the Consequences for Prenatal Substance Abuse?

Drug use during pregnancy can cause many problems for the mother and child in addition to issues related to their health. Proven prenatal substance abuse and testing positive can lead to a range of legal issues as well. According to Houston drug crime lawyer, David Breston, the criminal penalties for a drug-related crime in Texas can range from a “a class “C” paraphernalia case to life in prison.

In other states, a positive drug test or if the newborn is exhibiting withdrawal symptoms can lead to revocation of custody rights. Loss of custody not only hurts the mother, but the child as well.
While infants and toddlers may be too young to process or remember the experience, it can have lasting and damaging effects, such as influencing their ability to love and trust others. The loss of custody is not only devastating but it can also take years to recover parental rights fully.

States that Require Drug Testing for Newborns

In recent years, testing newborns for drugs has become a highly debated topic. But laws vary from state to state. Here’s a snapshot of the laws as they currently are in states throughout the U.S.

Require to test: Indiana

Required to test AND report for prenatal drug exposure: Iowa, Kentucky, Louisiana, Minnesota, North Dakota and Rhode Island

Required to report prenatal drug exposure: Alaska, Arizona, Arkansas, California, District of Columbia, Illinois, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, Ohio, Oklahoma, Pennsylvania, Utah, Virginia, Wisconsin.

Required for grounds to terminating parental rights: Alabama, Arizona, Arkansas, Colorado, District of Columbia, Florida, Illinois, Indiana, Iowa, Louisiana, Maryland, Minnesota, Missouri, Nevada, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin

Your Questions

 Every day, the number of newborns born with NAS continues to increase. While it is not required to drug test a newborn in Texas, it’s important to know that it can still lead to severe consequences, including the loss of parental rights.
We understand that you probably have more questions about this topic. Please leave your questions in the comments section below. We do our best to respond to all real life questions personally.

 

About the author
Alana Redmond is a legal content writer who works with David Breston in Houston. Alana focuses her writing on drinking and driving laws, technology and consumer safety across Texas. She is a graduate from the University of California San Diego. You can learn more about Alana on her Linkedin or reach her by email at aredmond1point21@gmail.com.

5 Comments

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  1. My daughter-in-law was drug tested during pregnancy in Texas but I’m not sure why. She tested positive for at least THC; CPS case was opened and she took parenting classes. Will there be more drug testing? And is it possible that the baby will be removed from the home if either parent is positive? She did have gestational diabetes, which could have caused the testing; I really have no idea. My son claims the case is closed BEFORE her classes were finished, which I do not believe. Just wondering at this point what to expect.

  2. My daughter was told by a doctor at a hospital that she miscarried her baby at 12 weeks. Now she thinks she is having labor pains and worried she may still be pregnant after all. This would mean she is 33 weeks now. She said she had smoked marijuana, and smoked meth not knowing any different a month ago. She is terrified because she would never had done so if she had known. Could she still be charged or have her baby taken away?

    1. Hi Shari. First of all, I suggest your daughter visits an obstetrician or a gynecologist. Next, you should consult a lawyer. He/she will be able to evaluate your situation and offer the help you need. Good luck!

  3. If your on methadone when u give birth can you still loose your baby. While under treatment so baby dose not die from withdraws. So say I was using street drugs and then went and got help and started treatment at the methadone clinic will I have any problems keeping my baby?? And would it even be mentioned to child welfare or any other child agency. How’s it work to avoid loosing my babies and to avoid anyone getting involved in our life

    1. Hi Cristy. When it comes to children Texas law strongly emphasizes that, first and foremost, the state court must consider the child’s best interest when deciding matters of child custody and parental access. Also, the state will do anything to keep both parents in the life of the child. I believe that choosing treatment is in the best interest of your child and you as well. Consult with a lawyer. He/she will be able to answer any legal questions. Also, if you need treatment feel free to contact us. We can help you.

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