Prenatal Activities May Constitute Child Abuse I KingSpry

Superior Court Determines Prenatal Activities May Constitute Child Abuse

Posted on December 29th, 2017
by Rebecca A. Young

The attorneys in KingSpry’s adoption practice help foster parents, prospective adoptive parents, as well as caseworkers working with birth and foster families, to facilitate permanency for children.

In a decision issued December 27, the Pennsylvania Superior Court addressed a significant legal issue that affects all parties to a child abuse matter. The Court’s decision, In the Interest of L.B. held that a mother’s prenatal drug use may, in some circumstances, constitute child abuse. 

The decision reviewed the language of the Child Protective Services Law in detail.  While the Court made no determination whether child abuse had occurred in the case before it, the decision may have far-ranging ramifications.  As pointed out in a concurring opinion, the decision is not limited to cases involving drug use.

In L.B., the Clinton County Children and Youth Services took emergency custody of L.B. because the child’s mother tested positive for illegal drugs while pregnant and at the time of birth.  L.B. was hospitalized for 19 days following birth to address withdrawal symptoms resulting from Mother’s drug use.  L.B. was found dependent and CYS was granted physical and legal custody.  The trial court held that the law did not allow it to find that Mother had committed child abuse through her prenatal drug abuse. CYS appealed that legal issue.

Child abuse occurs when a perpetrator intentionally, knowingly or recklessly acts or fails to act and thereby causes bodily injury or creates a reasonable likelihood of bodily injury to a child. 

Pennsylvania law distinguishes between a fetus and a child and the law does not allow a finding of abuse on a fetus.  The Court’s decision held that in some circumstances a mother’s decisions and behavior made during pregnancy may nonetheless constitute child abuse if they result in bodily injury to the child at birth.

The concurring opinion presented concerns about the practical and policy ramifications associated with this ruling.  Pregnant women should not be discouraged from seeking prenatal care and/or from giving birth in the medical setting out of concern that they will be labelled child abusers as the result of a drug addiction.  Further, the statute does not limit the behaviors or decisions during the prenatal period that may result in injury to the child following birth.  Therefore, many decisions made during pregnancy could subject a parent to a child abuse allegation.  A few listed by the Court include: choices regarding physical activity; dietary decisions that may affect the child’s health; travel decisions to countries that may adversely affect the child; and a decision to remain in an abusive relationship.

We will continue to follow this decision and its policy implications.


heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.