The Marshall Project has reported extensively on hospital drug testing of pregnant patients. Hospitals routinely use drug tests that are fast and cheap, but are highly prone to misinterpretation and have false positive rates as high as 50%. That’s led to parents getting reported to child welfare authorities and police, forcibly separated from their children, interrogated, arrested or prosecuted. Some people have faced criminal charges over positive tests caused by legal CBD gummies and morphine provided during childbirth. Many of these drug tests were administered without patients’ knowledge or consent.
If you’re expecting, or planning a pregnancy, you might feel especially concerned about this. Here are five tips to help you navigate the stress of drug testing during your child’s birth.
In this story:
- Ask your hospital for its drug testing policy.
- Look up your state’s policy on our website.
- If you are drug tested and the result is positive, ask what kind of testing method the hospital used and ask for a confirmation test.
- Ask for the full medical record from your child’s birth.
- Consider contacting your hospital, your legislator and your state attorney general.
Ask your hospital for its drug testing policy.
Every hospital’s policy is different. Some drug test every single patient who comes in to give birth, while others use certain criteria, such as whether the patient had limited prenatal care, high blood pressure or even bad teeth. Aside from having patients sign general consent to care forms, many hospitals that drug test do not disclose this fact to patients. If they do disclose, hospitals rarely inform patients that the results could be shared with authorities.
As a patient, you have the right to know what medical procedures will be performed and what may be done with this information. Ask your provider to disclose your hospital’s policy on drug testing and reporting.
Asking for this may feel intimidating — and understandably so. Prior to writing these stories, reporter Shoshana Walter asked her doctor, and found that the question was met with suspicion. We suggest sharing a link to The Marshall Project’s stories with your doctor to help explain the reason for your request. Some specific questions you may also consider asking:
- Do you drug test patients who come in to give birth?
- What are your criteria for determining who to drug test?
- What does the hospital do with a positive result?
- Does the hospital perform a confirmation test?
- Who is responsible for reviewing and interpreting the results? What does that review look like?
- Will the hospital share a positive result with child welfare authorities or police?
- Who can I appeal to if I disagree with a result?
Look up your state’s policy on our website.
We spent a year collecting and verifying data and state policies to determine whether and how often child welfare agencies share reports of alleged pregnancy drug use with police or prosecutors. We found that child welfare agencies shared these allegations with law enforcement more than 70,000 times over six years. And that’s only in 21 states — a significant undercount.
Referral policies vary wildly. In some states, like Michigan and Massachusetts, referrals to police are rare and only occur if there are other allegations of criminal conduct or safety issues. In other states, such as Georgia and Minnesota, every allegation of pregnancy substance use is sent to law enforcement, even if child welfare workers dismiss the allegations. The highest frequency of referrals took place in Oklahoma, where one in 24 births resulted in a law enforcement referral.
Look up your state’s policy on our website. It may give you some peace of mind. Or it may inspire you to take some of the precautions detailed here.
If you are drug tested and the result is positive, ask what kind of testing method the hospital used and ask for a confirmation test.
Most hospitals use urine drug screens that are quick and cheap (as little as $10 per test), but easily misinterpreted with false positive rates as high as 50%. To get more accurate results, toxicologists recommend a second, more precise (and more expensive) test using mass spectrometry. Your hospital may not offer such a test, but ask for one. If your hospital refuses and reports your positive result to child welfare authorities, you can pay out of pocket at a private lab to get your own test done. This may be difficult for many families to afford, but some families have found that these independent tests help alleviate the concerns of authorities who are investigating them.
Ask for the full medical record from your child’s birth.
If you did not use illicit substances, there could be many reasons for a positive test, from a false positive caused by common foods and medications, to medications the hospitals gave you during childbirth. Some hospital-administered medications can also pass on to the baby, leading babies to test positive on drug tests. Make sure to request all of your and your newborn’s medical records, so that you can see for yourself what medications were given to you, and whether they may have triggered a positive test result. You can also request records from your other medical providers to prove that you were legally prescribed a medication that showed up on a drug test.
Consider contacting your hospital, your legislator and your state attorney general.
Hospitals often have full discretion over whether or not to screen for drugs, but once a positive result is in hand, the decision to report it to child welfare agencies becomes more complicated. Our previous reporting found that at least 27 states explicitly required hospitals to alert child welfare after a positive screen or potential substance exposure, but not a single state required hospitals to confirm test results before reporting them. This is essentially the opposite of workplace drug testing. Most workers who are drug tested on the job are entitled under state and federal laws to certain protections, such as confirmation tests and a review from a specially trained doctor to determine whether a food or medication could have caused a positive result. Our reporting found that not a single state extends such protections to pregnant patients.
In addition, we found that 13 states automatically share all such reports with police or prosecutors, including cases that are unfounded or involve patients who took prescription medications legally, as their doctors instructed.
You can reach out to your representative to demand better protections. State and federal lawmakers could take legislative action to better protect parents from the consequences of non-consensual drug testing. You can also submit a consumer or civil rights complaint. Attorneys general in New York and New Jersey have taken action against hospitals that drug test without consent.
