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Can a New Jersey mother be charged for neglecting her fetus?

While many New Jersey residents would balk at the thought of using cocaine during a pregnancy, it remains unclear if this is an act that warrants punishment under the law. A specific case stemming from the birth of a baby boy in Sept. 2007 has New Jersey's highest court listening to experts weigh in on both sides. The mother and the infant both tested positive for cocaine at the time of the child's birth. Consequently, the mother was charged with neglect by the Department of Children and Families.

According to the charged mother's defense, there is no evidence that a positive test shows that the child was harmed. Further, the defense argues that New Jersey law makes no specific references to fetuses; therefore it is unjust to charge this mother.

On the flip side, the prosecution is arguing that using substances such as cocaine while pregnant is reckless and a risk factor for unsafe conditions for the child. The prosecuting attorney is quoted in the following words, "We would rather come in at the red flag of risk rather than after actual harm has occurred."

This statement begs the question of whether or not it is fair to intervene when there is only risk and speculation. If police were allowed to intervene at any sign of risk, then they could potential remove children from homes left and right when they think there is a risk. However, not all risk factors prove to lead to consequences. Further, removing a child from a home unnecessarily and splitting up a family has the makings of a situation which would cause harm to a child.

The outcome of this case remains to be seen but could have a significant impact on the law surrounding pregnant woman and the application of New Jersey law to fetuses.

Source: SF Gate, "NJ court weighs if drugs in newborn warrant charge?" Katie Zezima, Sept. 10, 2012

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