Emily Baker, a Florida mother, was prescribed buprenorphine by her doctor to manage her opiate addiction. She’d been opiate-free for three years when she conceived her second child. Despite taking a medication that was prescribed and monitored by her doctor, the hospital reported her to the state Department of Children and Families immediately after she delivered.

For women who use drugs during pregnancy, the stakes are high. Women who give birth to babies with neonatal abstinence syndrome (NAS) are being criminalized—and their babies are suffering as a result. In Tennessee, mothers are being arrested if their baby is born with NAS, even if the dependency is a result of the mother taking medication prescribed and monitored by her doctor. In Alabama, prosecutors are using a law initially intended to keep children away from meth labs to charge women with “chemical endangerment” of their babies. Texas and Wisconsin are seeing similar cases.

Women, particularly poor women and women of color, are having their babies taken by child protective services, sometimes while they are thrown in jail, for an alleged addiction that needs treatment, not punishment. While this isn’t a new problem, mainstream recognition of a national “opiate epidemic” has politicians scrambling for solutions. But these carceral and punitive responses are dangerous and attack the symptom, not the root cause. With so much at stake, the NAS treatment babies are getting in the hospital after their birth may be contributing to the problem.

How did we get here?

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Neonatal abstinence syndrome is the condition that occurs when babies are born with a physical dependence on a drug because they received that drug in utero. This transmission could have occurred because the baby’s mother used illicit drugs or because she was taking certain medications as prescribed by a doctor. It can also occur if a mother is working with a doctor who prescribes her methadone or buprenorphine as medication-assisted treatment for her opiate addiction.

In 1975, Dr. Loretta Finnegan developed a scale to measure withdrawal symptoms in drug-exposed babies, and it’s still used today to diagnose the condition in newborns. Symptoms of NAS include tremors, excessive crying, yawning, sneezing, diarrhea, and poor sucking, among other things. Often, NAS is treated with morphine, which the baby is given in small doses and slowly tapered off of over the course of several weeks (or longer).

Finnegan was one of the pioneers in the field of NAS research. She’s been called “the godmother of NAS” by the Nation magazine, and with good reason. She is credited with coining the term “neonatal abstinence syndrome,” and for years, her work has set the standard for how babies born with NAS are treated in hospitals across the country.

At Pregnant Women, Drug Use, and Neonatal Abstinence Syndrome: Research & Policies that Support Mothers, Babies, and Families, a recent symposium in Nashville, Tennessee, Dr. Davida Schiff from Boston’s Children’s Hospital moderated a panel on improving guidelines and protocols for managing NAS. Schiff asked an audience comprised predominantly of medical professionals how their hospitals currently treat babies born with NAS. The results showed that not much has changed since Finnegan made her recommendations in the 1970s.

Though groundbreaking at the time, the recommended protocols are hard on both mom and baby. Worse, they may actually contribute to or exacerbate NAS symptoms in babies. Babies born to mothers known to be using opiates or other drugs are typically separated from their mother and taken to the NICU, where they are observed in a quiet, dimly lit room. They are monitored for signs of withdrawal by having their Finnegan score measured on a regular basis. The mother is often discouraged from breastfeeding.

Baker says that during her second pregnancy, her daughter was kept in the NICU for two weeks and treated for NAS with morphine. Says Baker, “[My baby] was doing great, she was breastfeeding awesome. She had no signs of withdrawal and no trace of buprenorphine in her system. But the hospital said, ‘this is our policy, we’re going to watch her in the NICU for 48 hours.’” Baker had hoped to take her baby home without needing NAS treatment, which her obstetrician had assured her she would be able to do as long as her baby was doing OK.

Some medical professionals, however, feel there is a better way to test for and treat NAS, and they’re doing research to back up their claims. Dr. Ron Abrahams, who has been practicing in Vancouver, Canada for 30 years and founded the FIR (Families In Recovery) rooming-in program at B.C. Women’s Hospital and Health Centre, believes that “when you put a baby in a special care nursery, you’re putting it in an abnormal environment. And when you put a baby in an abnormal environment, it will exhibit abnormal behavior.”

Baker says that this is exactly what happened to her daughter. “She had no signs of withdrawal until they discovered that she had jaundice the third day we were there. They threw her under the bili lights [to treat her jaundice] and then all of the sudden she’s having withdrawal symptoms.”

Dr. Mary Hepburn has been working with pregnant women who use substances in Glasgow, Scotland for the last 40 years. And, according to her, “when the mother can stay with her baby, the Finnegan score goes down. Scoring a baby away from its mother results in a different score than scoring the baby when it is with its mother.”

She believes putting the baby with the mother immediately after birth is the best practice. Abrahams agrees—and so does his research. In a 2007 study, he found that “rooming-in”—allowing babies to remain in the room with their mothers following birth—improves outcomes for these babies and reduces the symptoms of NAS by as much as 50 percent.

It makes logical sense that the things that benefit all babies—breastfeeding, skin-to-skin contact, and bonding with their mother—benefit drug-exposed babies too. Women who give birth to a baby generally want to stay with that baby, hold that baby, nurture that baby, and love that baby. Putting their baby in a room far away from them goes against their instincts and wishes. And it turns out that trusting those instincts may actually be beneficial for both mom and baby.

At the NAS symposium, both Abrahams and Hepburn expressed their belief that the Finnegan score should be thrown out altogether. Hepburn explains that when you’re looking for a sneeze or a yawn to document, you’re more likely to not only see those things, but view them as abnormal or problematic. Baker called it “confirmation bias.” She says, “My baby did yawn and she did cry—but, hell yes she cried; she was naked and under the [bili] lights!”

The subjectivity of the scale is one of its biggest liabilities. Each nurse is likely to score a baby just a little bit differently. Baker says that her baby could have been jaundiced because she was breastfeeding, like so many other babies are. But she believes that because she was on buprenorphine to treat an opiate addiction, the nurses chose to see a baby in withdrawal. Abrahams says that the score looks at normal baby behavior that can be interpreted subjectively as withdrawal, “particularly if it’s a brown baby or a poor baby.” He believes that the scoring leads to diagnoses influenced by racial biases.

So what is a good objective indicator of whether or not a baby is doing well? Weight gain. Hepburn says that as long as mom can settle the baby so that it can feed, the baby most likely doesn’t need treatment. Both Hepburn and Abrahams say that neither of them operate under the assumption of withdrawal, and that all other causes for infant behavior should be ruled out before diagnosing a baby with NAS. Abrahams explains that “NAS is a diagnosis of exclusion.”

And excluding NAS as a diagnosis can be the difference between a mother going to jail or a baby being taken into state custody, and a mom leaving the hospital with her child. The women in Abrahams’ study who roomed-in with their babies were more likely to be discharged with custody of their babies too.

Baker says it took over six months to convince the Florida Department of Children and Families that she was a fit parent. She describes countless home visits, DCF interviews with her family and friends about her parenting, and intrusive searches of her cabinets and refrigerator. Though she never officially lost custody of her daughter to the state, she describes the experience as incredibly stressful. “Psychologically, the damage that does to not just me, but my family, my other daughter, you know, the stress that put on my family was unreal.”

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It turns out that the benefits to mom and baby aren’t the only upsides to adopting the rooming-in model of care. It’s actually cheaper too. A 2013 study conducted at Dartmouth found that rooming-in decreased the average cost of a mother’s hospital stay by half, partly due to the shortened length of hospital stays for babies that had roomed-in with their mothers. Canada is moving toward a standard of care that consists of rooming mom and baby together.

The United States is just starting to catch on. The Vermont Oxford Network has started a pilot project to improve care of opioid-exposed newborns. According to their website, leaders in quality improvement from three states have adopted their model of care and are working to develop coordinated statewide collaboratives in Massachusetts, New Hampshire, and Michigan. These collaboratives seek to improve the quality of NAS treatment in their state by developing goals, measures, and education events.

At the same time, conservative lawmakers are championing policies that criminalize women for using drugs—whether those drugs are licit or illicit. In 2014, Tennessee’s existing fetal assault law was amended to permit the arrest of pregnant and postpartum mothers based on the argument that this would encourage mothers to seek treatment for their addiction. But making a health-care issue a criminal justice one introduces human rights violations that infringe on a person’s right to health, non-discrimination, and privacy, according to Carrie Eisert of Amnesty International, who spoke on a panel at the Pregnancy, Drug Use, and the Law conference the day prior to the NAS symposium. She says that this criminalization also impedes access to needed health-care services and makes a woman less likely to seek prenatal care for fear of punishment. And we know that these laws disproportionately impact marginalized women from underserved areas, women living in poverty, and women of color.

These conservative lawmakers may not care about the humanitarian arguments, they may or may not care about the scientific arguments, but they very well may care about the cost arguments. Those numbers may be enough to convince the people with power to adopt rooming-in as the standard of care for drug-exposed babies—with, of course, the side effect of benefitting everyone involved.

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At the NAS symposium in Nashville, the old guard and the new went head-to-head. After Abrahams presented his research, Finnegan raised her hand to argue that rooming-in wouldn’t work in the United States. Citing the Dartmouth program, Abrahams countered that it would and it does. “Where there’s a will, there’s a way. And we now have evidence that shows it’s cheaper to keep the babies with their mother postpartum rather than putting them in the NICU.”

Finnegan shot back that “without evidence-based research,” the United States can’t adopt his model because “we have the issue of malpractice here.” Tension in the room was high as two leaders in their field challenged each other.

But Abrahams didn’t miss a beat, “In the next five or ten years, if we develop a protocol that says rooming-in is the national standard of care, it will [and should] be malpractice to separate a baby from their mother whether she is drug exposed or not.” Abrahams got not only the last word with his comment, but a round of applause from the room.

This is about more than pride or professional reputations. This is about the mothers and babies who are suffering every day, due to draconian laws and oppressive, outdated protocols. The best we could do 40 years ago is not the best we can do now—we know better, and it’s time to do better. Rooming-in, breastfeeding, and skin-to-skin contact have been shown to drastically improve the outcomes for babies with NAS and decrease the number of babies being diagnosed with it too. Lives depend on these new protocols being implemented in hospitals around the country, and it can’t happen soon enough.