Opinion: Pregnant patients need informed care, not criminalization

Every individual deserves to make informed decisions about their health. Pregnant patients should not be the exception. Yet hospitals across New York state are performing drug tests and screens on pregnant patients without their consent – and what’s worse: the results can lead to unnecessary investigations, and, sometimes, traumatic family separations. 

Black pregnant patients are more likely to be tested for drugs and four times more likely to be reported to Child Protective Services than white women, despite having similar rates of substance use. These tests don’t improve quality of care or outcomes for parents and babies. Instead, the threat of surveillance and reporting drives underserved community members away from critical, lifesaving prenatal care. Black families are already overrepresented at every stage of the child welfare system, and Black mothers are five times more likely to die during childbirth. Non-consensual drug testing traumatizes families, criminalizes birthing people and deters pregnant patients from accessing prenatal care, worsening the maternal mortality crisis.  

Informed consent is the foundation of patient-centered care, designed to uphold autonomy, build trust and ensure ethical decision-making in health care. When there’s an absence of informed consent, it erodes trust between patients and providers, ultimately discouraging patients from seeking further care and placing underserved families in jeopardy. 

We can start restoring dignity and autonomy, and building toward reproductive justice, by passing the Maternal Health, Dignity and Consent Act. This bill would require health care providers to obtain informed consent from pregnant patients before drug testing and screening, unless it’s deemed necessary in medical emergencies. It would reinforce that drug testing should be done only to serve medical diagnosis and treatment. Informed consent will not place babies at risk; in fact, it will maintain an individual’s rights to make informed choices about their body while creating trust between providers and patients. 

After New York City Health + Hospitals made the decision to require consent from pregnant patients before any drug testing, the results were remarkable. The rate at which mothers of newborns faced a CPS investigation on the basis of drug allegations dropped by almost 80%. For Black mothers, the decline was nearly 90%. Foster system entries fell by 37%. And there is no evidence that newborns or infants are any less safe as a result of reduced CPS involvement. Hospital systems across the country that have stopped routinely drug testing pregnant people have also reduced their CPS referrals with no negative impact on child safety.

All patients deserve consistent, trusting relationships with their doctors so that they know they can access critical care without negative repercussions – something too often out of reach for Black patients navigating both the health care and child welfare systems. The Maternal Health, Dignity, and Consent Act proposes a way forward that prioritizes patient care and trust. Pregnancy is a time when people are most likely to access consistent, sustained medical care. Prenatal care also shapes how patients relate to medical providers long after delivery. This time period is an opportunity to build trust and promote long-term health outcomes. 

Physicians routinely obtain informed consent before countless other screenings and procedures. It is a fundamental part of ethical medical care that ensures patients feel respected, comfortable and in control of their care. There is no reason prenatal drug screening should be the exception. The state Department of Health has published multiple guidelines recommending that providers obtain informed consent before drug testing and verbally screening pregnant patients. These guidelines are intended to encourage transparency, respect patient autonomy and foster non-stigmatizing health care for patients. 

It is important to clarify what this legislation does and does not do. Neither federal nor New York state law requires physicians to test for prenatal substance use or to report positive tests to child protective services. This bill would not change that. While some hospitals have already adopted informed consent requirements, many others have not. This bill would establish a statewide baseline requirement of informed consent, bringing the rest of New York largely in line with the approach endorsed by the state Department of Health and New York City’s public hospital system. That approach reflects a recognition that transparency, trust and connection promote the health and well-being of families.

We must move away from a health care system that surveils pregnant patients, especially Black mothers. Instead, we need to pass the Maternal Health, Dignity, and Consent Act to support patients in making informed decisions about their bodies.