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Protecting "Unborn Child" of Drug User by Arresting Mother Rejected by Wisconsin High Court


May-June 1997

On April 22, the Wisconsin Supreme Court ruled that state officials had been in error when trying to take custody of an "unborn baby" by detaining its mother who was using drugs. The decision was the first of its kind by a state high court on the detention of a pregnant woman for drug use. The 4-3 ruling stated that a fetus is not a child under welfare laws, and thus cannot be removed from its parent's custody for its own safety. Authorities attempted to take the fetus after receiving reports from the woman's doctor that she was using drugs. They asked for an order to remove the "unborn child from his or her present custody and plac[e] the unborn child" in state custody. In order to do this, the pregnant woman would have to be detained as well. The court declared it did not have jurisdiction over the "unborn child" (Angela M.W. v. William Kruzicki, et. al., 561 NW2nd 729, (April 22, 1997); Tamar Lewin, "Detention of Pregnant Woman for Drug Use is Struck Down," New York Times, April 23, 1997, p. A16).