MOM-TO-BE IS LIABLE FOR HARM TO BABY

You probably know that smoking or drinking during pregnancy may harm an
unborn baby. Yet some mothers-to-be are willing to risk the baby's health.
If your actions during pregnancy harm your child, you may be punished and
have the baby taken from you. That's the import of an Ohio Supreme Court
decision last month.

Can a parent be charged with child abuse for actions during a pregnancy?

The answer is yes, according to the Ohio Supreme Court. Let's take a look
at the case decided last month. Tonya Kimbrough gave birth in Canton to a
baby boy, Lorenzo Blackshear. Shortly after birth, tests disclosed that
Lorenzo had cocaine in his system. His mother also tested positive for cocaine.

Kimbrough was charged by the Stark County Department of Human Services with
child abuse. Ohio law defines an abused child as any child who, "because of
the acts of his parents ... suffers physical or mental injury that harms or
threatens to harm the child's health or welfare." A child is defined as a
person under 18 years of age. But is a fetus a person?

The Ohio Supreme Court sidestepped this politically sensitive question. The
court found that Kimbrough's drug use "caused Lorenzo injury - both before
and after birth." Whether or not Lorenzo is considered a "child" under Ohio
law before birth, "It is clear that after his birth, Lorenzo was a
child'"as defined by the child abuse statute.

The court explained "there can be no more sacred or precious right of a
newborn than the right to life and to begin that life, where medically
possible, healthy, and uninjured." With that basic premise, the court held
that Lorenzo was an abused child at and after birth, "no matter when the
original abuse occurred."

Accordingly, the trial judge's decision to remove Lorenzo permanently from
his mother's custody was affirmed.

Does this decision apply to injuries caused by smoking and drinking?

The facts in the Kimbrough case involved taking an illegal drug. What if a
mother takes legal actions, such as smoking or drinking, which harm her child?

The court's rationale would seem to apply to any pre-birth actions that
cause a child injury that continues after birth. Under the ruling of this
case, mothers whose smoking or drinking harms their children may be held
responsible for child abuse.

What if a pregnant woman becomes ill and takes lawful medications that harm
the child? Or maybe a pregnant woman drives negligently, causing a traffic
accident that harms the child. Could a woman in these cases expose herself
to a child-abuse case? While the same rationale seems to apply, it's hard
to predict how far courts would go.

What if the baby didn't survive birth?

That's the question that the court refused to answer. In this case, Lorenzo
was born alive, so the court could focus on the fact that Lorenzo after
birth was clearly a child under the terms of the law. Two justices in a
separate concurring opinion made it clear that the court's opinion did "not
reach the issue of whether a fetus is a child for purposes of this civil
child- abuse statute."

In a prior case, the Ohio Supreme Court had ruled that a mother who took
illegal drugs during her pregnancy could not be held criminally liable for
harming a fetus. But the court in the Kimbrough case noted that that case
was very different, because criminal laws must be "strictly construed ...
against the state." Here, the child-abuse statute is not criminal but civil.

The bottom line is that a pregnant woman who takes actions that could
injure her baby may face the consequences in two respects. First and most
important, she may be harming her child. And second, she may be held liable
for child abuse. Budish is a partner in the law firm of Budish & Solomon in
Pepper Pike. He also is host of "Golden Opportunities," a television show
dealing with issues of interest to people 50 and older, at 12:30 p.m.
Sundays on WKYC Channel 3.