If a baby is born addicted to drugs in Tennessee, can the mother or the drug dealer be prosecuted?

Subject

Opinion No. 13-01 (Revised), Liability for Infants Born with Narcotic Drug Dependency, February 1, 2013

Plain-English summary

A state senator asked whether anyone could be held responsible, criminally or civilly, when a baby is born addicted to narcotics or with drug-caused birth defects. The Attorney General concluded that a 2012 amendment to Tennessee's fetal-assault and criminal-homicide statutes (Tenn. Pub. Acts ch. 1006) added language exempting "any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant" from criminal liability. That amendment, effective July 1, 2012, expressly overrode the office's earlier 2008 opinion that had read the same statutes the other way.

The drug supplier got no such pass. The AG explained that anyone who unlawfully furnished narcotics to a pregnant woman could still be prosecuted for an assaultive offense or, if the baby died, criminal homicide, provided the prosecution could prove causation and the required mental state. The opinion also walked through the civil side: the Tennessee Drug Dealer Liability Act (Tenn. Code Ann. § 29-38-106) gave anyone "exposed to an illegal drug in utero" a cause of action for damages against people in the chain of distribution, and a separately developed common-law negligence claim recognized since Shousha v. Matthews Driveurself Serv. (Tenn. 1962) allowed a child born alive to sue for prenatal injuries caused by another person's negligence.

The opinion also clarified that prenatal drug use, while not a criminal child abuse offense (the child abuse statutes did not reach fetuses), could still support a finding of "severe child abuse" in juvenile court civil proceedings under cases like Cornelius v. State and In re Benjamin M.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee's approach to prenatal drug exposure has changed several times since this opinion issued. The General Assembly later passed and then allowed to expire a "fetal assault law" (the 2014 amendment to Tenn. Code Ann. § 39-13-107 that revived criminal liability for mothers in some circumstances) and has revisited the issue more than once. Anyone applying this opinion's framework today should pull the current version of §§ 39-13-107 and 39-13-214 and check for later amendments.

Background and statutory framework

Before July 1, 2012, Tenn. Code Ann. § 39-13-107(a) defined "a human embryo or fetus at any stage of gestation in utero" as a potential victim of assaultive offenses, and the AG's earlier opinion (Tenn. Att'y Gen. Op. 08-114) had read that to allow prosecuting a mother whose drug use harmed her fetus. The 2012 amendment substituted language that exempted "any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant," and added a separate exemption for "any lawful medical or surgical procedure to which a pregnant woman consents, performed by a health care professional who is licensed to perform such procedure."

The Drug Dealer Liability Act, codified at Tenn. Code Ann. § 29-38-106, was a civil-remedy statute allowing children exposed in utero (among others) to sue anyone in the illegal-drug distribution chain. The Act permitted recovery of economic, noneconomic, and exemplary damages plus attorney fees.

For ordinary negligence claims, Shousha v. Matthews Driveurself Service established that a child born alive could sue for prenatal injuries proximately caused by another person's negligence. White v. Lawrence set out the standard negligence elements (duty, breach, injury, cause in fact, and proximate cause). Whether any given child's case would meet those elements would depend on the specific facts.

The opinion also addressed the criminal child-abuse statutes (Tenn. Code Ann. §§ 39-15-401 and -402), which Tennessee courts had interpreted not to encompass conduct against a fetus. So even before the 2012 amendment, the mother was not facing a child-abuse prosecution; the change focused on the assaultive-offenses and criminal-homicide statutes.

Common questions

Could a Tennessee mother be prosecuted in 2013 for using drugs while pregnant?

Under the law as the AG read it in 2013, no. The 2012 amendment expressly carved out "any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant" from the assaultive-offenses and criminal-homicide statutes that had previously been read to reach such conduct.

Could the dealer who sold the drugs to the mother be prosecuted?

Yes, in the AG's view. The opinion concluded that an unlawful supplier could face assaultive-offense or homicide charges if the baby was injured or died, provided the prosecution could establish causation and a culpable mental state. The 2012 amendment's exemption applied only to the pregnant woman herself and to medical professionals performing licensed procedures with her consent.

Could the mother be sued civilly even if she could not be prosecuted?

The opinion described the Drug Dealer Liability Act as authorizing suits by individuals "exposed to an illegal drug in utero" against people who distributed or participated in the drug-distribution chain. It did not directly answer whether the mother herself could be sued by the child under that Act, and noted that any negligence claim against the mother would turn on the same general elements (duty, breach, causation, harm) that apply in any tort case.

Did the 2012 amendment leave any criminal exposure for medical professionals?

No, not for performing a "lawful medical or surgical procedure to which a pregnant woman consents," when done by someone licensed to perform it. That exemption is in the same 2012 enactment.

What about juvenile court intervention with the baby?

The opinion explained that prenatal drug use was not a criminal child-abuse offense but could constitute "abuse" or "severe child abuse" in the civil juvenile-court context under Cornelius v. State and In re Benjamin M. That mattered because severe child abuse findings could support termination of parental rights or other dependency outcomes, separate from any criminal prosecution.

Citations

• Tenn. Code Ann. § 39-13-107 (assaultive offenses against a human embryo or fetus)
• Tenn. Code Ann. § 39-13-214 (criminal homicide of a human embryo or fetus)
• Tenn. Code Ann. § 39-15-401, -402 (child abuse, neglect, endangerment)
• Tenn. Code Ann. § 29-38-106 (Drug Dealer Liability Act, including in-utero exposure)
• Tenn. Code Ann. § 20-5-106 (wrongful death)
• Tenn. Pub. Acts ch. 1006, §§ 2 & 4 (2012) (added the pregnant-woman exemption)
• Shousha v. Matthews Driveurself Serv., Inc., 358 S.W.2d 471 (Tenn. 1962) (cause of action for prenatal injuries)
• White v. Lawrence, 975 S.W.2d 525 (Tenn. 1998) (negligence elements)
• Cornelius v. State, 314 S.W.3d 902 (Tenn. Ct. App. 2009) and In re Benjamin M., 310 S.W.3d 844 (Tenn. Ct. App. 2009) (prenatal drug exposure as severe child abuse in juvenile civil context)
• Tenn. Att'y Gen. Op. 08-114 (May 21, 2008) (the earlier opinion expressly superseded here)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-001.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

February 1, 2013

Opinion No. 13-01 (Revised)

Liability for Infants Born with Narcotic Drug Dependency

QUESTION

If a child is born with a narcotic drug addiction or with birth defects resulting from maternal use of narcotic drugs, may the child's condition result in a finding of criminal or civil liability against either the mother or other individuals who were involved in unlawfully furnishing these drugs to the mother?

OPINION

Provided that the essential elements are established by sufficient proof, individuals involved in unlawfully furnishing narcotic drugs to the mother may be found liable in a criminal action for a newborn child's addiction or birth defects resulting from the maternal drug use. Recent amendments to Tennessee law would preclude any criminal liability of the mother for the newborn child's addiction or birth defects. The civil liability of the mother or other individuals involved in unlawfully furnishing these drugs to the mother would depend upon the specific facts and circumstances presented.

ANALYSIS

Pursuant to Tenn. Code Ann. § 39-13-107(a), "a human embryo or fetus at any stage of gestation in utero" may be a victim of any of the assaultive offenses listed in Title 39, Chapter 13, Part 1. Prior to July 1, 2012, this statute was broad enough to include finding a mother criminally liable for ingesting narcotic drugs while pregnant if her child was born addicted to or harmed by the drugs, assuming sufficient proof of causation and of intent or knowledge. Tenn. Code Ann. § 39-13-107 (2011); Tenn. Att'y Gen. Op. 08-114 (May 21, 2008). Likewise, these circumstances prior to July 1, 2012, might have subjected the mother to criminal liability for criminal homicide under Title 39, Chapter 13, Part 2, if her baby were to die as a result of maternal use of narcotic drugs. See Tenn. Code Ann. § 39-13-214(c) (2011). However, effective July 1, 2012, the General Assembly amended these governing statutes, substituting language that expressly exempts from criminal liability "any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant." Tenn. Pub. Acts ch. 1006, §§ 2 & 4. See also Tenn. Code Ann. § 39-13-107(c); Tenn. Code Ann. § 39-13-214(c). Because the statute is clear and unambiguous, the natural and ordinary meaning of the language must be applied. See, e.g., Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004); Austin v. Memphis Publ'g Co., 655 S.W.2d 146, 148 (Tenn. 1983). As applied, these statutes explicitly prohibit a criminal action against a woman for narcotic drug use that results in her newborn's drug addiction or birth defects. Accordingly, the 2008 opinion of this Office, Tenn. Att'y Gen. Op. 08-114 (May 21, 2008), no longer reflects the applicable law.

The 2012 amendment also exempts from criminal liability "any lawful medical or surgical procedure to which a pregnant woman consents, performed by a health care professional who is licensed to perform such procedure." Tenn. Pub. Acts ch. 1006, §§ 2 & 4; Tenn. Code Ann. § 39-13-107(c); Tenn. Code Ann. § 39-13-214(c). The statute thereby affords a defense to prosecution for assaultive offenses and criminal homicide in favor of medical personnel. For any other individuals who may have furnished narcotic drugs to the mother, the unlawful provision of such narcotics to a pregnant woman could be a source of criminal liability assuming sufficient proof of injury or death to the fetus, causation, and culpable mental state. See Tenn. Code Ann. § 39-13-107; Tenn. Code Ann. § 39-13-214.

A mother's drug use also does not qualify as criminal child abuse, neglect, or endangerment, or criminal aggravated child abuse, neglect, or endangerment, because the applicable statutes do not encompass actions committed against a fetus. See Tenn. Code Ann. §§ 39-15-401 and -402; State v. Hudson, No. M2006-01051-CCA-R9-CO, 2007 WL 1836840, at 1-2 (Tenn. Crim. App. June 27, 2007); Richards v. State, No. E2004-02326-CCA-R3-PC, 2005 WL 2138244, at 4 (Tenn. Crim. App. Sept. 2, 2005); Tenn. Att'y Gen. Op. 95-023 (March 27, 1995). However, prenatal drug use may be found to constitute abuse or severe child abuse in the civil context of juvenile court proceedings. Cornelius v. State, 314 S.W.3d 902, 910-11 (Tenn. Ct. App. 2009); In re Benjamin M., 310 S.W.3d 844, 848-51 (Tenn. Ct. App. 2009).

As for potential civil liability, the Tennessee Drug Dealer Liability Act authorizes actions for damages by individuals who were "exposed to an illegal drug in utero." Tenn. Code Ann. § 29-38-106(a)(2). The Act provides for the recovery of economic, noneconomic, and exemplary damages and for attorney fees and the costs of suit. Tenn. Code Ann. § 29-38-106(c). Actions under the Act may proceed against those who distributed illegal drugs to the user or who participated in the chain of distribution or in the drug market. Tenn. Code Ann. § 29-38-106(b).

In addition, a child harmed by prenatal narcotic drug exposure or the child's representative may be able to pursue claims for negligence. Since 1962, Tennessee courts have recognized that an infant has a cause of action for prenatal injuries negligently caused by another. Shousha v. Matthews Driveurself Serv., Inc., 358 S.W.2d 471, 476 (Tenn. 1962). "[A] viable child receiving prenatal injuries proximately resulting from negligence of another has a cause of action conditioned only upon his being born alive. His right to prosecute his remedy for such injuries commences from the time of his live birth." Id. If the child dies as a result of the maternal drug use, the claim may become one for wrongful death. Tenn. Code Ann. § 20-5-106. "A claim of negligence requires proof of each of the following elements: a duty of care owed by the defendant to the plaintiff; conduct falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; cause in fact; and proximate cause." White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998). Whether a child harmed by prenatal narcotic drug exposure or the child's representative may legally establish these elements will be dependent on all of the circumstances underlying the child's claim.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

CAROLYN E. REED
Assistant Attorney General

Requested by:

The Honorable Randy McNally
Senator, 5th Senatorial District
307 War Memorial Building
Nashville, Tennessee 37243-0205