Separated at Birth

How biased healthcare systems are breaking up families across The United States.

By Maximilian Eyle published on Feb. 3rd, 2020

            In an episode of last Week Tonight, John Oliver drew attention to the issue of bias in medicine. Specifically, he described how our healthcare system systematically treats women of color differently and noted the negative outcomes that result from that reality. In our own community of the Bronx, we face similar challenges. Not only do racial and economic biases inhibit treatment, trust, and communication between patients and our healthcare institutions, but the stigma surrounding substance use amongst women and mothers exacerbates these problems. At SACHR, we are finding new ways to confront these issues, support our community, and reshape the healthcare landscape for women and people who use drugs.

           Particularly in low income minority communities, our criminal justice system and law enforcement agencies are used to monitor the behavior of pregnant women. This is especially true when the mother has a history of using drugs. The strong presence of these punitive agencies in the healthcare system serves to create mistrust between pregnant women seeking care and the medical providers themselves. Government child welfare agencies like Child Protective Services (CPS) are extremely powerful and have the ability to forcibly remove a child from their parent – a punishment that is inflicted very often. A report submitted to the U.N. Human Rights Council noted that “Parents in the system are overwhelmingly poor, and Black and American-Indian parents are vastly overrepresented.” In the United States, roughly 270,000 children are separated from their parents every year by CPS.

In the United States, roughly 270,000 children are separated from their parents every year by CPS.

            A major part of the problem is that medical personnel often work more cooperatively with the foster system than with the mothers themselves. Private information is often collected without the patient’s consent and turned over to CPS. A 2019 report entitled “Violence Against Women in the Medical Setting: An Examination of The U.S. Foster System” describes how factors such as post-partum depression, a failed drug test, or refusal to consent to a medical procedure all regularly result in the medical provider making a report to the authorities.

            Consider the case of Jennifer, a 20 year old woman living in New York City. After a physical altercation between her and the father of her child, her three year old son was taken away and had not been returned despite the fact that all criminal charges against her had been dropped. When Jennifer became pregnant again, she attempted to hide her pregnancy and missed several doctor’s appointments out of fear that her second child would be taken away as well. Once born, the hospital separated mother and child immediately because Jennifer “had not completed the service plan for her son”. Such stories clearly illustrate how the punitive approach our healthcare system takes when dealing with low income and minority communities exacerbates the very problems that it claims to be solving.

            Stories like Jennifer’s may be anecdotal, but a look at the data surrounding foster care supports the conclusion that the current system is prejudiced. An article from the City University of New York Law Review calls attention to the misconception that children are usually separated from parents due to direct abuse, cruelty, or abandonment. In fact, the majority of such cases reflect instances of neglect – a critical distinction. “Indeed, state laws, including New York’s, also make the confusion of poverty with neglect almost inevitable by including conditions of poverty in the statutory definition of child neglect.” In other words, the most loving parent can easily find themselves forcibly separated from their child if their economic hardships reach a level deemed unacceptable by the State.

            Our own community of the Bronx is a powerful example of this destructive phenomenon at work. Although the borough represents only 17% of the total New York City population, it accounts for 30% of the total children separated each year from their parents and placed in foster care. Part of the reason for these separations comes from maternal drug tests that are performed at much higher rates upon pregnant women of color than on their white counterparts – despite the fact that drug use is equally common among both racial groups.

The most loving parent can easily find themselves forcibly separated from their child if their economic hardships reach a level deemed unacceptable by the State.

            The issue of whether or not these women are consenting to drug tests is another problem. In a New York City Council hearing in April 2019, a representative from NYC Health and Hospitals Corporation confirmed that there is a wide and general set of criteria for drug testing a patient, that the criteria is not public, and that the consent of the patient is not formally recorded except in the physician’s own notes. This seems undeniably problematic given that the consequences of administering such a test can easily result in the separation of mother and child.

            Krystal Montalvo, Women’s Services Unit Manager at SACHR, says that many women are not aware of their rights when it comes to prenatal care. She explains that the issue of drug testing pregnant women and using those results to separate mother and child is a perfect example of when women can flex their rights. “Many women are not aware that a positive toxicology result does not constitute as neglect – therefore a CPS intervention is not necessary right away,” she says, “The information is not automatically shared with law enforcement or CPS. If a woman declines the meeting with a social worker, the information must still be kept private due to HIPPA.”

            There are mandatory reporting laws that stipulate that healthcare workers must report abuse when they see it or face liability charges themselves. But even mandatory reporters are given discretion to discern whether to judge something as abuse or not. Certainly some cases warrant an immediate call to CPS, but Montalvo argues that in borderline situations – it is important that the healthcare worker shares their concerns with the patient in order to establish trust. By opening up that dialogue and connecting the patient with supportive, community based organizations, the relationship between patient and healthcare provider can be strengthened.

            Montalvo began working with SACHR Founder and CEO Joyce Rivera to explore how they could better educate women about navigating the healthcare system. “We wanted to start an initiative that focused on providing a lawyer, social worker, and case manager to focus on women who use substances and who are pregnant so they can have legal defense and social work,” said Montalvo. She explains that there is a widespread myth that women who use substances do not care about their babies. In reality, they don’t access care because they don’t want to be separated from their baby as punishment for their substance use. At the same time that Rivera and Montalvo were discussing this idea, the NYC Dept. of Health wanted to open a Birth Justice Defenders Hub in the South Bronx. They successfully submitted a proposal that focused on prioritizing poor women and addressing stigma – themes that are central to SACHR’s overall mission. Shortly thereafter they received the designation and opened their own Birth Justice Defenders Hub.

“You have the life experience, I have the textbook experience.”

            The Birth Justice Defenders Hub at SACHR now meets regularly to discuss reproductive rights and connect women from the community with supportive professionals. It operates as part of SACHR’s Women’s Services Unit which provides a place of trust for women who often lack a support network. When leading group sessions, Montalvo tells participants: “You have the life experience, I have the textbook experience.” She invites them to share their experiences, participate in group discussions, and support each other. “It’s their group, not mine,” she says. “It’s not about what I want. It’s about taking their ideas, building on them, and helping them become self-advocates.”

             The campaign to eliminate disparities in CPS investigations and empower pregnant women in marginalized communities is also being fought on a policy level. Currently, there is a movement to add a new section to the New York Public Health Law that would ensure written and informed consent prior to performing a drug test. One vocal proponent of this measure is Erin Miles Cloud, an attorney who specializes in issues surrounding drug users’ rights, reproductive justice, and the child welfare system. She lectures at Columbia University and currently works with The Movement For Family Power – a nonprofit that seeks “to end the Foster System’s policing and punishment of families.”

             Cloud points out that many people are unaware of these problems because they have been largely left out of the national dialogue on women’s health issues. “The conversation around reproductive rights often ignores substance use,” she says. “If we aren’t starting with our most marginalized sisters, than we won’t get anywhere.” Drug use is still heavily stigmatized, particularly among women and mothers. Cloud points out that our society’s punitive approach to drug use during pregnancy creates more problems than it solves. By offering support rather than punishment, we could achieve far more in terms of protecting both the child and the mother.

If we are serious about improving the welfare of babies whose parents use drugs, we must also be serious about improving the welfare of the parents themselves.

             The Crack Baby hysteria that grew during the 1980s and 1990s is a perfect illustration of how damaging the mixture of fear and stigma can be. Our most venerable news sources including the New York Times reported about the new generation of irrevocably damaged children who would grow up to burden our society. The women who used crack during pregnancy were demonized to dehumanizing levels. Because crack cocaine was prevalent in the black community, the Crack Baby epidemic helped cultivate racial tensions and further marginalized poor people of color. Yet as we now know – it was all nonsense. The exposure to the drug during pregnancy had little to no effect on the baby. In fact, the resulting separation of the mother from their child after a positive drug test was almost certainly more damaging than the drug use itself.

            By helping women flex their rights in regards to prenatal drug testing, the intention is not to normalize or encourage prenatal drug use. In fact, the opposite is true. If we are serious about improving the welfare of babies whose parents use drugs, we must also be serious about improving the welfare of the parents themselves. There is a tremendous amount of work to be done in order to repair the relationship between our healthcare institutions and the marginalized populations that they are designed to serve. Solving this problem will not happen quickly or easily, but we can begin by empowering the very women who have suffered longest under the current system.