medical cannabis

By Kali Perkins, Attorney at Emerald Law Group

Pregnancy is a time of heightened awareness and responsibility for both expectant mothers and healthcare providers. In California, where cannabis has been legalized for both medical and recreational use, navigating the intersection of prenatal care and cannabis consumption can be complex. One area of concern is prenatal testing for cannabis use, which raises questions about privacy, legality, and potential consequences. In this blog, we’ll delve into the landscape of prenatal cannabis testing in California and provide insights to help expectant mothers make informed decisions.

Cannabis use during pregnancy is on the rise in California and across the US. The trend mirrors increased use in the population overall as more states legalize cannabis for recreational purposes.

Most clinical and epidemiologic estimates of prenatal cannabis use are based on self-report, and the validity of self-reporting has never been examined. Further, there are not many reliable studies to determine the effects of cannabis on your unborn baby. The few studies that exist are often compromised due to the mother’s use of other substances such as tobacco, alcohol, or other drugs which interfere with the results of such studies.

Those studies, although skewed, indicate that cannabis may harm pregnant women and their babies, including an alleged increased risk of preterm birth, low birth weight, anemia in mothers, and behavioral, mental health, and developmental problems in children. Accordingly, all major medical organizations uniformly recommend against cannabis use during pregnancy and while breastfeeding.

Do your best to research the issue so that you are fully informed of the possible consequences of your prenatal use of cannabis to make an informed decision for you and your baby.

Understanding Prenatal Cannabis Testing

Prenatal cannabis testing involves screening expectant mothers for the presence of cannabis metabolites in their system. This testing can occur during routine prenatal care visits or as part of prenatal screening protocols. In California, healthcare providers may conduct prenatal cannabis testing for various reasons, including:

Routine screening

Some healthcare providers in California include cannabis testing as part of standard prenatal care to assess potential risks to maternal and fetal health. Be aware of this before you sign up for care with such health providers, and if you are using cannabis, you will need to find another health care provider. One that only tests if they believe your baby is at risk is best.

Risk assessment

Prenatal cannabis testing will most likely be required for pregnant women who disclose cannabis use or exhibit signs of substance abuse, allowing healthcare providers to offer appropriate support and interventions. If you let health care  providers know about your use, or if your use is obvious health care providers will be forced to act. You don’t want to give health care providers reason to test you for drugs during pregnancy.

Legal requirements

In certain cases, prenatal cannabis testing may be mandated by law, such as in instances involving suspected maternal substance abuse or child welfare concerns. While prenatal cannabis testing is conducted in some healthcare settings, it raises important legal and ethical considerations. In California, where cannabis is legal for both medical and recreational use, expectant mothers have rights regarding privacy and autonomy. However, the legality of prenatal cannabis testing and its implications for maternal and fetal well-being remain subjects of debate.

Privacy concerns

Expectant mothers may be concerned about the privacy of their medical information and the potential consequences of a positive cannabis test result, including legal repercussions and involvement with child protective services.

Informed consent

Healthcare providers have an ethical obligation to obtain informed consent before conducting prenatal cannabis testing, ensuring that expectant mothers understand the purpose, risks, and potential outcomes of the testing process. However, where the healthcare provider has evidence to believe your baby is at risk due to your use of controlled substances, testing will be mandated, and CPS will intervene if the drug is found in your baby’s system.

Support and resources

Pregnant women who test positive for cannabis use should have access to non-judgmental support, education, and resources to address any underlying substance use issues and promote healthy pregnancy outcomes. Unfortunately, this will all likely be done through CPS and a social worker. Be sure to consult an attorney immediately if your baby tests positive for cannabis.

Navigating the Decision

For expectant mothers in California, navigating prenatal cannabis testing requires careful consideration of legal, ethical, and personal factors.

While the decision to undergo testing ultimately rests with the individual, pregnant women are encouraged to:

• Seek informed guidance: Consult with healthcare providers to understand the purpose and implications of prenatal cannabis testing, as well as available support services.
• Know their rights: Familiarize themselves with their rights regarding medical privacy, informed consent, and access to supportive care.
• Prioritize well-being: Make decisions that prioritize their own health and that of their babies, weighing the potential benefits and risks of prenatal cannabis testing in the context of their individual circumstances.
• Ensure your privacy: Disclosure of your use of cannabis during pregnancy WILL lead to negative results for you and your baby. Once a health care provider is aware of your use of a controlled substance, testing will be mandated. If the drug is found in your or your baby’s system you will likely find yourself dealing with a CPS case.

Prenatal cannabis testing in California intersects with legal, ethical, and healthcare considerations, raising important questions about privacy, autonomy, and maternal-fetal health. Expectant mothers are encouraged to engage in open and informed discussions, advocate for their rights, and make decisions that align with their values and priorities.

However, be careful to disclose your use of cannabis during pregnancy to your health care provider. Disclosure can create a situation where testing is mandated, and ultimately, if the drug is found in your baby’s system, your baby can be removed from your care by CPS and a CPS case will be opened. (See also: Our extensive post about CPS cases and your rights)

Risks of Disclosing Cannabis Use During Pregnancy

1. Involvement with Child Protective Services (CPS)

A positive cannabis test result during pregnancy will most likely trigger an investigation by CPS to assess the potential impact on the well-being of the unborn child and any existing children in the household.

2. Legal challenges

Depending on the circumstances, a pregnant woman who tests positive for cannabis will likely face legal challenges related to child custody, visitation rights, or allegations of child neglect or abuse.

3. Healthcare provider response

Healthcare providers have a duty to report substance use during pregnancy if they believe it poses a risk to maternal or fetal health, potentially leading to interventions such as substance abuse treatment or monitoring.

Legislative Developments in Cannabis Testing Rules

There is currently a bill pending in the legislature which will require informed consent for cannabis testing. California Assembly Bill 1094, currently pending in the legislature, would prohibit medical personnel from performing a drug or alcohol test or screen on a pregnant person, perinatal person, or newborn, without the prior written and verbal informed consent of the pregnant person, perinatal person, or person authorized to consent for a newborn. It would require the test or screen to be “medically necessary to provide care.”

The bill allows testing, without consent, if in the physicians judgment, an emergency exists, the person is in immediate need of medical attention, and an attempt to secure consent would result in a delay of treatment that would increase the risk to a the person’s life or health. Finally, the bill prohibits medical personnel from refusing to treat a pregnant person, perinatal person, or newborn, solely on the basis that consent for testing was refused. Clearly this bill will be a huge step in protecting the privacy of mothers and newborns.

By navigating this complex terrain with awareness and empowerment, pregnant women can ensure the best possible outcomes for themselves and their babies.

Our attorneys at Emerald Law Group are women who understand these complexities. We have practiced in the cannabis realm for over 30 years combined, and we are mothers. We are knowledgeable about your rights, so please reach out if you have any questions.