Toxic Breastmilk: When Substance Abuse Relapse Means Death for Baby

Posted on Jan 23, 2019

This post originally appeared on the Harvard Law Bill of Health on November 15, 2018.http://blog.petrieflom.law.harvard.edu/2018/11/15/toxic-breastmilk-when-substance-abuse-relapse-means-death-for-baby/

Recently, a nursing mother in Pennsylvania made national headlines when her infant died from ingesting a combination of fatal drugs through breastmilk.  According to the coroner’s report, the infant died from a combination of methadone, methamphetamine, and amphetamine toxicity. The Bucks County District Attorney charged the mother, Samantha Jones, who also has a two-year old child, with criminal homicide. According to published reports, Jones was undergoing Medication Assisted Treatment (MAT) and receiving doses of methadone to treat her addiction to opioid painkillers.

Multiple commentators swiftly voiced opposition to the District Attorney, decrying the criminal charges against Jones, arguing it is “highly problematic” to levy criminal charges against a person undergoing treatment for Substance Use Disorder.

This case represents broader questions woven in the current opioid crisis: Is the criminal justice system merely punishing people for addiction? Who should be held accountable for such tragic outcomes against the most vulnerable members of society – infants and children? Do persons with addiction retain any choice over their actions? And lastly, what is the significance that Jones continued to engage in polysubstance abuse despite receiving Medication Assisted Treatment?  To note, the American College of Obstetricians and Gynecologists adopt the position that new mothers with Opioid Use Disorder who are engaged in MAT and wish to breastfeed can do so as long as they do not relapse.

Earlier this year, the Massachusetts Supreme Court in Eldred v. Massachusettsemphasized the criminal justice system does not punish persons with SUD for their addiction or relapse, but instead for involvement with a specific crime that directly impacts the safety and welfare of society, which may be motivated or influenced by drug abuse.  In Jones’s case, her relapse and decision to breastfeed her infant delivered a lethal dose of controlled substances into his system, resulting in his death. For others with opioid addiction this could include a variety of potential crimes, such as diversion and sale of opioid medications (including prescribed opioid medications used in MAT, like methadone or buprenorphine), fatal motor vehicle accidents caused by driver impairment, or child neglect by persons struggling with opioid addiction. Damage caused by these crimes and the consequences of drug abuse reverberate significant harm to other people society that is not diminished simply because the person committing the crime was impaired by the influence of drugs.

We have an ethical responsibility to use the law to protect the public’s safety and welfare while also considering whether our current treatment model offers appropriate care and compassion to persons with addiction. From a health law and ethics standpoint, this requires examining whether the scientific and medical evidence matches policy recommendations.

Media coverage of high profile cases, such as the Samantha Jones case and Eldred v. Massachusetts highlight fissures in the dominant model for treating persons with Opioid Use Disorder.  What’s troubling is that Jones did reach out for treatment. How could such an outcome happen? Growing evidencesuggests that our current approach is not working: many people who are funneled into MAT and taking methadone and buprenorphine are not recovering.

Policy rhetoric classifying addiction as a chronic brain disease minimizes psychological and social factors that contribute to addiction, marginalizing the importance of addressing personal circumstances and reasons for drug use. People with addiction can engage in self-reflection, retain free will, and can relearn mechanisms to respond to triggers of drug use.  Telling people with addiction that they have a chronic brain disease and will face a lifetime of struggle and relapse is not only unsupported by current evidence finding that most people with addiction recover without treatment, but it may also contribute to helplessness and despair.  Even if drug abuse induces changes in the brain that can erode self-control, these changes are not permanent.  Neuroscience shows abstinence not only reverses damage from substance abuse, but produces new learning and growth in the brain.

The National Institute of Drug Abuse and the Office of National Drug Control Policy tell us that MAT constitutes the most effective form of treatment, arguing it is misconception that such treatment substitutes one substance use disorder for another.  Few have questioned this assertion, but we should.  Even if MAT may indeed work for some, we need to ask the critical questions of why numerous patients receiving a replacement opioid become desperatefor higher doses, report seeking , and the majority continue to abuse opioidsand other substances such as alcohol, cocaine and cannabis.

Across the country, research and media reports show us glimpses of a larger problem: people are receiving a replacement opioid, but are still engaged in substance abuse and not receiving comprehensive treatment. In an Alabama case, Taylor v. Smith, the judge aptly summarized that the treatment facility provided methadone to the patient “not in lieu of illegal drugs, but in additionto them.” Patients who experience side effects like depression, fatigue, memory loss, and cognitive impairment may attempt to stop medication, only to encounter painful withdrawal and no clear plan from their treatment provider to address their dependence on a new powerful drug. Being impaired not only affects the patient’s ability to work, engage in family activities, and recover, but also impacts public safety and welfare.

This care is neither compassionate nor humane, and both patients and society deserve better. This unspeakable tragedy shattered a family, and it is incumbent upon us to ask the tough questions. Instead of merely calling for more access to treatment, we need to scrutinize what constitutes effective treatment and positive outcomes: being enrolled in MAT or merely reducing polysubstance abuse cruelly demonstrated the insufficiency of these criteria.