Support for the NYS Maternal Health, Dignity and Consent Bill

SUMMARY

The Sex & Law Committee with support from the Civil Rights Committee, Health Law Committee, Bioethical Issues Committee, and Council on Children, issued a report in support of the Maternal Health, Dignity and Consent bill, which would “prohibit the drug, cannabis or alcohol testing and screening of pregnant or postpartum individuals and newborns unless the individual consents and it is within the scope of medical care, or the testing or screening is necessary for a medical emergency.” The bill ensures prenatal care access and affirms pregnant people’s bodily autonomy by preserving the trust between a perinatal person and their healthcare provider through prohibiting drug testing without informed consent. By requiring informed consent, the bill also aims to stop the practice of using drug tests as a basis for punitive family regulation system and criminal legal system interventions. “No New Yorker should have to fear seeking health care during pregnancy. The Committees support the Maternal Health, Dignity and Consent Bill because the practice of testing perinatal people and their newborns without their informed consent and reporting the results of those tests to Child Protective Services (CPS) violates bodily autonomy, exposes families to the trauma and violence of forced family separation, and exacerbates the maternal-infant health crisis. The Committees recognize that this legislation is an important step in addressing racial and socioeconomic disparities in the family regulation system and maternal-infant health outcomes.”

BILL INFORMATION

A.860 (AM Rosenthal) / S.845 (Sen. Salazar) – Prohibits drug, cannabis or alcohol testing and screening of pregnant or postpartum individuals and newborns unless the individual consents and it is within the scope of medical care, or the testing or screening is necessary for a medical emergency (NYS 2025).

REPORT

REPORT ON LEGISLATION BY THE SEX & LAW COMMITTEE, CIVIL RIGHTS COMMITTEE, HEALTH LAW COMMITTEE, BIOETHICAL ISSUES COMMITTEE, AND COUNCIL ON CHILDREN

A.860 (AM Rosenthal)
S.845 (Sen. Salazar)

AN ACT to prohibit the drug, cannabis or alcohol testing and screening of pregnant or postpartum individuals and newborns unless the individual consents and it is within the scope of medical care, or the testing or screening is necessary for a medical emergency.

THIS BILL IS APPROVED

I. PURPOSE

The Sex & Law Committee, Civil Rights Committee, Health Law Committee, Bioethical Issues Committee, and Council on Children (the “Committees”) of the New York City Bar Association support enactment of the NYS Maternal Health, Dignity and Consent Bill A.860 / S.845.

This legislation ensures prenatal care access and affirms pregnant people’s bodily autonomy by preserving the trust between a perinatal person[1] and their healthcare provider through prohibiting drug testing without informed consent. By requiring informed consent, the bill also aims to stop the practice of using drug tests as a basis for punitive family regulation system and criminal legal system interventions. In so doing, this legislation brings the law in alignment with the principles of major medical and public health associations, including those of the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, the American Society of Addiction Medicine, the National Perinatal Association[2] and those contained in existing New York State Department of Health clinical guidelines prescribing informed decision-making with pregnant and postpartum patients.[3]

No New Yorker should have to fear seeking health care during pregnancy.  The Committees support the Maternal Health, Dignity and Consent Bill because the practice of testing perinatal people and their newborns without their informed consent and reporting the results of those tests to Child Protective Services (“CPS”) violates bodily autonomy, exposes families to the trauma and violence of forced family separation, and exacerbates the maternal-infant health crisis. The Committees recognize that this legislation is an important step in addressing racial and socioeconomic disparities in the family regulation system and maternal-infant health outcomes.

II. REASON FOR SUPPORT

A. What the Maternal Health, Dignity, and Consent Bill Would Do

Currently, many hospitals in New York drug test perinatal people and their newborns without their informed consent and report those results to CPS[4] (“test-and-report”)—a practice that became widespread during the War on Drugs and that has been expanded by the misinterpretation of the federal Child Abuse Prevention and Treatment Act (“CAPTA”) and the Comprehensive Addiction and Recovery Act (“CARA”).[5]  While these federal laws require states to have policies in place to notify child welfare agencies of substance-affected newborns, they do not require drug testing perinatal people or their newborns, and they certainly do not require reporting suspected abuse or neglect to child welfare agencies.[6]  When healthcare providers report positive drug tests to CPS, the ramifications can be severe: families are exposed to unnecessary government intervention, and in some cases, face permanent family separation.

The New York State Maternal Health, Dignity, and Consent Bill would address these negative ramifications of testing and reporting by prohibiting healthcare providers from performing a drug, cannabis, or alcohol test on a perinatal person or their newborn unless the perinatal person gave their written and oral informed consent, and the test was within the scope of medical care.[7]  In addition, this legislation would ensure that perinatal people are aware of the potential for prolonged government surveillance and forced family separation before submitting to a drug test by requiring that they be informed of the potential legal consequences, “including, but not limited to, a report to a local child protective services agency.”[8]

B. Why Requiring Informed Consent Prior to Drug Testing Perinatal People and their Newborns is Necessary

 Separations and removals based on positive drug tests are especially troubling because they disproportionately affect poor families of color.[9] For example, studies have found that newborns born to Black mothers are significantly more likely to be drug tested than newborns born to white mothers—despite the fact that drug use by Black and white women occurs approximately at the same rate in the United States.[10]  Black mothers are also more likely to be drug tested even in the absence of risk factors for substance use disorders, such as history of drug use.[11]  This disproportionate drug testing, in turn, results in disproportionate separations among Black, Indigenous, and People of Color families and higher rates of BIPOC children in the foster care system.[12]

Additionally, drug testing without informed consent and reporting those results to child welfare agencies can undermine the doctor-patient relationship and deter perinatal people from seeking perinatal healthcare.[13]  This deterrent effect consequently exacerbates the maternal-infant health crisis: newborns born to parents who do not receive prenatal care are three times more likely to have a low birth weight and five times more likely to die than newborns born to parents who do receive prenatal care.[14]

Moreover, drug tests are not synonymous with parenting tests because they are not reliable gauges of assessing imminent harm to the child.  First, the drug tests that hospitals use often show false positives or are otherwise inaccurate and unreliable.[15]  Second, even if a positive result is verified through confirmatory testing, there is a dearth of scientific evidence demonstrating that using certain drugs, like marijuana, during pregnancy is actually harmful to the child.[16]  Third, as the Administration for Children’s Services’ (“ACS”) policy itself recognizes, a parent’s substance use alone cannot be the basis for a report of neglect or abuse, much less a removal, without a separate assessment of whether there is an actual imminent risk to the child.[17]  However, the reality is that positive drug tests often result in unnecessary removals and delayed reunifications.[18]  At a minimum, positive drug tests often result in “social holds,” during which the newborn is held at the hospital while CPS petitions the court for placement in foster care.[19] This practice separates perinatal people from their newborns during a crucial time for maternal-infant bonding and disrupts the establishment of lactation.[20]

III. CONCLUSION

The current test-and-report practice is poor public health strategy because it harms maternal-infant health, exacerbates racial and socioeconomic discrepancies in the family regulation system, and perpetuates the generational trauma of forced family separation. It also is in direct opposition to guidelines issued by major medical and public health associations, including national organizations and New York’s own Department of Health. Requiring informed consent prior to drug testing perinatal people and their newborns is therefore crucial.  For these reasons, the New York City Bar Association supports the Maternal Health, Dignity, and Consent Bill and urges its passage.

Sex & Law Committee
Natalie Birnbaum, Co-Chair
Susan Cersovsky, Co-Chair
Vandana Apte, principal writer

Civil Rights Committee
Evan Henley, Co-Chair

Health Law Committee
Debra Cohn, Chair

Bioethical Issues Committee
Mary Beth Morrissey, Co-Chair
Anne Zimmerman, Co-Chair

Council on Children
Cathy Cramer, Chair

June 2025