NEW BRAUNFELS - With an estimated 30 percent of the Child Protective Services cases in Comal County involving children born already drug-addicted to addict mothers, the District Attorney would like to see the law step in sooner.
Jennifer Tharp will testify at 9 a.m. in the John Reagan Building in Austin Tuesday on behalf of House Bill 1243, Doug Miller's "drug mom" bill.
The proposed legislation would add a new offense to the Texas Penal Code and also would amend the Family Code.
It would eliminate the onus on the system to make every effort to reunite parent and child, in cases where the mother has engaged in drug use while pregnant.
Tharp is keenly aware of the issues the bill would encounter on its rite of passage. With abortion legal and the cry for a woman's control over her own body a central pillar of the pro-choice position, a law that would criminalize illegal drug use in pregnancy is a sore spot for many.
"I understand women's rights. I respect that completely. I understand abortions are legal," Tharp said.
"What's the difference between a child who is a minute old being provided with constitutional rights to prevent abuse of that child versus the moments up to that birth?" she said. "My response to that is that (the pregnant mother) doesn't have a constitutional right to use drugs.
"All I'm saying is that a woman should not be able to use illegal drugs that harm her child, and I appreciate Doug Miller trying to do something about it," she said.
Tharp has a question she often poses to illustrate her point.
"Is it criminal if a woman who is pregnant to use drugs during her pregnancy?"
The answer is "no."
"We only criminalize possession or delivery - (a pregnant mother) can admit (drug use) to me and there's nothing I can do to protect the life of that child," she said. "We have laws on the books that allow for prosecution of an adult for child abuse or child endangerment, but actions by a mother that may cause harm to her child while the child is in her womb cannot be prosecuted."
By law, doctors are not required to notify law enforcement when a pregnant woman is ingesting dangerous drugs during her pregnancy. Not until the moment the child is born does it get protection, Tharp said. "When that child tests positive (for drugs) the hospital will notify CPS," she said.
For many children, the first connection with CPS is when the hospital calls to report that a baby was born with cocaine or methamphetamine in their system.
Once the baby's out in the world, the legal grounds change, Tharp said.
"If you take the needle and stick it in the child's arm, it's completely illegal. I can prosecute that several different ways," she said, flipping to a picture in her cell phone of a newborn, sleepy, his left hand curled up to his head, revealing a birth defect - just a single digit where there should be five fingers on his tiny left fist.
"He's the cutest little guy. His mother used meth all through her pregnancy, and that's not fair," Tharp said.
That little boy is now a year old, and both his parents had their rights terminated.
Tharp's impassioned as she talks about the plight of the already-drug-addicted newborn. Every touch, every sound, every bit of light, intended to sooth, is agony as the infant's nervous system responds to wihdrawal from the drugs that have literally been mother's milk.
"It's absolutely gut-wrenching to go to the hospital and see these babies go through their withdrawal symptoms. It's not fair for these children to live a life suffering the effects of drug use," she said.
Tharp estimated that 30 percent or more of the CPS cases involve children that were drug-exposed in utero.
Even after the infant is weaned from the drugs that coursed through the mother's system, symptoms linger long into life.
"We're dealing with children having problems in schooling, they need therapy," she said.
Tharp estimated that in any given month, there are five or six dockets in Comal County's district courtrooms. On average, each of those dockets will have at least two CPS cases involving children drug-exposed in utero.
For mothers unable to beat their addiction, even if it harms the infant they carry and would want to protect from sheer maternal instinct, criminalization could provide a chance to get clean and not to harm their baby, she said.
"Unless there's a criminal case, I can't get them help," she said.
"If prosecution isn't the avenue, how do we help them? It's a huge monster on their back," she said.
If an addicted pregnant woman can't or won't take steps to protect her child from her own addiction, provision should be made for the state to do so "when it starts harming another person," Tharp said.
"At some point, you have to say ‘When do we stand up for this child?'"