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Analysis Law and Policy

Murder by Nursing?

Emily Horowitz

Stephanie Greene is being charged with murder. Her crime? Breastfeeding her newborn.

Stephanie Greene is being charged with murder. Her crime? Breastfeeding her newborn.

The unexpected death of a 5 ½ – week-old infant is a mind-numbing tragedy. Facing murder charges in the face of that death is an inconceivable horror. Yet this is happening to Stephanie Greene, 37, a woman currently facing homicide by child abuse charges.

Stephanie lives in Campobello, South Carolina. Prosecutors allege that Stephanie took so much prescription medication that her daughter Alexis died of a morphine overdose ingested via breast milk. The coroner’s report shows the cause of death as drug overdose, because the infant had an elevated blood level of morphine. The case is complicated; because there is no question that Stephanie takes a significant amount of prescription medication for documented physical ailments (i.e. fibromyalgia, chronic pain, high blood pressure) resulting from a near-fatal car accident a few years ago, including MS Contin (a drug that metabolizes as morphine).

In the hospital, Stephanie did not reveal that she was taking any medications at all, even though she was asked multiple times by multiple people. Stephanie was sheepish when asked about this. Stephanie says she knew that her medication use would open her up to suspicion. South Carolina is the state, after all, notorious for shackling new mothers to their hospital beds if they (or their infants) tested positive for illegal drugs – and removing infants to foster care and the mothers to jail. Although the Supreme Court ruled this practice illegal, Stephanie had been a nurse in South Carolina long enough to know she was in a state where mothers and pregnant women who use or abuse drugs are viewed with special contempt.

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Stephanie was aware that her use of strong opioids (especially morphine) would raise suspicion. South Carolina has aggressively (and, according to legal advocates, illegally) prosecuted women who unintentionally miscarry a fetus after illegal drug use. Although the state has come under fire from advocates for these racist (although Stephanie is white, almost all the women convicted of this charge have been African-American and poor) and problematic policies, a woman like Stephanie knew it was not a good idea to openly discuss her painkiller use while in the hospital.

Stephanie’s lawyer, C. Rauch Wise (known as “Rock”), a noted local defense attorney, has represented a number of women facing similar charges, although he is unaware of others charged with homicide by child abuse as a result of breastfeeding. “What’s scary to me,” Rock explains, “is that the state thinks enough of a drug can be distributed through breast milk to kill a baby.” Wise says that South Carolina takes advantage of their Whitner decision, a ruling that allows the state to use child neglect and homicide laws to punish pregnant women who use drugs. Organizations like National Advocates for Pregnant Women (NAPW), a group devoted to defending the civil and human rights of pregnant women, recognizes the peculiar harshness of South Carolina, noting that: “Every state court of last resort and all intermediate appellate courts that have addressed this issue have rejected the approach taken by the South Carolina Supreme Court in the Whitner case.”

Wise views Stephanie’s case as something even more ominous than Whitner, and thinks if Stephanie goes to prison, women will be scared to breastfeed and will think they have the power to kill their infants – a power that is a point of significant scientific debate and controversy.

After arriving home, Stephanie says a lactation consultant from the hospital called to see how she was doing with her breastfeeding. Stephanie revealed her medications to the consultant – including the MS Contin. The consultant referred her to a website run by NIH with a comprehensive list of drugs and their compatibility with breastfeeding. The consultant told Stephanie she got all of her information from the site, and Stephanie accessed it and found the that morphine is relatively safe for nursing mothers, with breast milk levels ranging from “trivial” to “quite low.”

After being discharged from the hospital, nothing unusual was noted by the doctors or nurses, nor was anything unusual noted with either Stephanie or Alexis during their 4-week pediatric visit or by a visit to a pediatric ophthalmologist (recommended because of an eye cyst). In the days just before Alexis died, she had a cold and stuffy nose. Stephanie called the pediatrician who told her to use a vaporizer and vapor rub to help the baby breathe (which Stephanie did), which she did, but to only bring her to the office if fever was present (which Stephanie didn’t, because it wasn’t).

Stephanie spent all her time with newborn Alexis, caring for her like any new mother, and family photos show her older siblings and extended family doting on the new baby. Randy, Stephanie’s husband, strongly asserts that he would have noticed if Stephanie was under the influence or impaired in any way, and Homer, Stephanie’s father, stopped by the house almost every day after Alexis was born, and he too forcefully says that Stephanie was doing all she possibly could for the new baby and was not neglectful in any way.

At 12:30am, on November 13, 2010, Alexis awoke and Stephanie fed her – and then fell back to sleep next to Stephanie and Randy in bed. At 3:30am, Randy awoke and noticed something was wrong with the baby (“she felt cold,” he says). Stephanie realized Alexis was not breathing, and immediately began infant CPR. Randy called 911 and paramedics arrived, but they were unable to resuscitate Alexis and she was pronounced dead.

Stephanie doesn’t remember what happened next. The coroner says he has a video of Stephanie when he arrived at the house that same morning where she appears “under the influence”. Another report claims that Stephanie smoked when they arrived and appeared unconcerned. Stephanie and Randy say none of this is true, except for the fact that she was smoking (she and Randy are both smokers). Obviously, they were in shock, and it seems pointless and cruel to critique the behavior of any parents in the hours after learning of the death of a child.

Stephanie and Randy tried to move on with their lives and mourn Alexis. They were totally shocked when on June 7, 2011, 9 months after Alexis died, Stephanie was arrested. Initial reports say Stephanie used fraudulent prescriptions morphine and was “doctor-shopping.” National and international outlets picked up the story about the “morphine mom” who nursed her baby to death.

A spokesperson for the county sheriff, Tony Ivey, was quoted in these reports saying that that toxicology proves that the infant died directly from medication ingested from Stephanie’s breast milk, and that Stephanie is fully responsible for the death of the infant, noting “Taking care of children and raising children is very serious business, and if you’re taking medication or whatever, follow the doctor’s guidelines, consult your doctor, because this is something that should never have happened to an infant child like that. It had no control over this whatsoever and the mother should’ve known better.”

In spite of what Ivey says, official records show that Stephanie was taking medication prescribed by the same doctors she had seen regularly over the past few years for her various ailments, and that she received all her prescriptions from the same pharmacy. Her doctors continued to prescribe medication after the death of Alexis and only stopped following Stephanie’s arrest.

In a similar Canadian case, a woman was charged with murder after her baby allegedly died after ingesting morphine-tainted breast milk. It turned out the woman was a “rapid metabolizer” of morphine, and extremely high levels of morphine were transferred to her breast milk. In that case, the woman was prescribed morphine for postpartum pain, and doctors regularly prescribe morphine to postpartum women because of its relative safety and few side effects. The La Leche League has even issued a statement saying that morphine is safe to take while nursing.

Did Stephanie try to hurt her baby? No. Was Stephanie neglectful because she breastfed her infant while taking prescription drugs? No. Any mother will tell you that breastfeeding can be more difficult than formula feeding. Mothers who can’t nurse for physical reasons often suffer tremendous guilt – particularly when they see research about the often-hyped benefits of breastfeeding.

The notion that one would nurse a baby to death makes as much sense as cuddling or snuggling someone to death. Stephanie nursed her baby out of love and affection, and this is not something that can be questioned – by definition, nursing can never be an act of violence or harm.

After 4 weeks in jail, Stephanie was released on a $100,000 bond in July 2011. Stephanie was under house arrest and had to wear a 24-hour-monitoring bracelet for 6 months. The family struggled to pay the $136.50 weekly fees for the bracelet. Stephanie was relived when it was finally removed on January 20, but she still can’t be alone with her 3 minor children (ages 5, 12, and 14). Her attorney is baffled by the extreme restrictions, noting that Stephanie is clearly not a flight risk because she has lived her entire life in the area, has 4 other children, and put the home of her mother-in-law up for her bond.

Why prosecute Stephanie? Breastfeeding while taking medication is almost always safe. There is little funding for research about the safety of medication and breastfeeding, and women are mostly left on their own to learn about what medications are compatible with breastfeeding. It is an open secret, now documented widely on websites and blogs, that doctors will recommend weaning and will always say medications are unsafe for breastfeeding to avoid lawsuits.

Dr. Sears, a Harvard-trained expert on child health, advises that there are risks involved with weaning and exclusive formula-feeding that can be as significant as the effects of medication transmitted via breast milk. He notes that physicians often advise women to wean when they aren’t sure about the effects of medication in breast milk, and that it is “impossible” for physicians to always keep up with the latest research about drugs in breast milk. He writes: “The risks of exposing a baby to a drug in breast milk should be weighed against the known risks of exposing a baby to infant formula while depriving him of breast milk…. Be aware that often what a mother is told about taking a medication about breastfeeding is based more on legal considerations than scientific knowledge. The information available from pharmaceutical companies about a drug…. often advises mothers not to breastfeed while taking a drug, but this advice reflects the company’s desire to protect itself from lawsuits and to avoid having to do expensive research that would allow it to say a certain drug is safe.” Women know not to ask their doctors if they should breastfeed if they are taking medication, because they know the answer – so they don’t ask.

When every single drug has a warning that breastfeeding mothers should consult their physician before ingesting, it numbs women to the reality that some drugs might actually be harmful to their babies. Add to that a medical profession that puts forth contradictory messages about breastfeeding, and with a legitimate paranoia about lawsuits, and women are not going to feel comfortable being honest with their healthcare providers about their medication. Further, when mothers read about the myriad benefits of breastfeeding, many desperately want to breastfeed at any cost (for example, in a recent Harper’s article, the French feminist Elizabeth Badinter points out that there are actually dangers to the extreme hype about breastfeeding, and argues that the interpretations of the existing studies about the benefits of breastfeeding are often exaggerated. Badinter notes that women who don’t breastfeed are now considered “bad” mothers – and there is little or no hype about the many alternate studies that show that formula-feeding does not necessarily doom a child to disease, a low IQ, and psychological disorders).

Dr. Steven Karch, an expert witness for the defense, is a leading expert in the field of drug related death and author of the authoritative textbook in the field, Karch’s Pathology of Drug Abuse. Karch believes that that there is no chance that a baby can die from morphine absorbed solely through breast-milk when the mother does not have a genetic defect.  Stephanie took morphine for many years and it is highly unlikely that she has this defect because she always tolerated morphine without a problem. According to Dr. Karch this genetic defect is exceedingly rare (and requires an expensive and difficult test), so it is still routinely prescribed for nursing mothers.

Most significantly, the coroner’s office says that Alexis had levels of morphine that exceeded 500 ng/ML. This is absurd, says Dr. Karch, and there is “zero possibility” that Alexis could have morphine levels this high after ingesting breastmilk from a mother taking any amount of prescribed morphine. By contrast, the infant in the Canadian case had levels of only 70 ng/ML. In the latest version of his textbook, Karch explains that it one cannot determine breast milk drug transmission without testing the mother’s milk, writing, “the only really accurate way to measure breast milk drug transmission is to collect the entire volume of milk from both breasts over 24 hours, then measure both the volume of milk and the amount of drug contained in it. This is difficult to do, and has not been done either for morphine or heroin in humans. However, when studies have been done on other drugs, such as prednisolone, fentanyl, and propofol and, more recently hydrocodone and hydromorphone, the amount of drug actually transmitted has been such a small percentage of the amount given to the mother that most experts see little need to discontinue breast feeding (normally, a nursing mother having elective surgery is advised to discard her milk for 24 hours).” According to Karch, in order to establish that drug-tainted breast-milk is the cause of infant death, one has to test the breast-milk from the mother and not only the blood levels of the infant – something that did not happen in Stephanie’s case.

In California, a woman is currently facing manslaughter charges for breastfeeding after taking methamphetamine, and women have been prosecuted for the same crime since the early 1990s. Dr. Karch points out that the science behind these cases is also flimsy, noting methamphetamine has been used for many years as a treatment for various conditions, including narcolepsy, and earlier research saw limited negative effects in nursing infants. He explains that infants absorb drugs in different ways than adults, and that drugs needs to bind to certain receptors in order to bind and do damage. “Babies,” says Dr. Karch, “don’t have a lot of those receptors, and newborns therefore don’t have even places for drugs to bind.” In most of the other documented cases of breastfeeding-related deaths, women plead guilty to lesser charges so they didn’t have to face trial. In one case, a breastfeeding infant was found to have a tiny amount (.266 micrograms) of methamphetamine in her blood, and the coroner concluded that the infant died of methamphetamine poisoning. The mother pled guilty to child endangerment and spent six years in prison, even though the coroner admitted that they weren’t sure what exact amount of methamphetamine could cause an infant death.

Why are women being prosecuted for murdering infants via breastfeeding when the science is so questionable? Clearly, prosecutors are deciding that women who use drugs are easy targets for public outrage and deserve punishment. On some level, it doesn’t matter if the drugs actually caused the death in the eyes of the prosecution. The idea of a mother taking drugs and breastfeeding causes outrage, and if a baby with a drug-using mother dies this only increases moral panic and demands for justice.

Are women who use drugs and get pregnant and/or breastfeed criminals? While the medical community overwhelmingly sees drug addiction as a public health problem, our social welfare system contradicts this when they seek to punish or intervene in punitive ways when pregnant and breastfeeding women use drugs. These policies, that appear well meaning and obvious – after all, no one thinks it is good if a pregnant or nursing mother abuses drugs – effectively and subtly undermine efforts to promote public health and welfare and, in turn, expand the war on drugs and abortion rights. Women can’t be prosecuted for having abortions or seeking birth control, but they can be punished for behaviors that supposedly end pregnancies or harm newborns – even though there is little scientific basis behind these charges. As NAPW points out, the women who are most harmed by these laws are overwhelming poor and lack access to health care and drug treatment. NAPW lawyers argue that are actually no laws that authorize prosecuting pregnant or nursing women for drug use, yet they are continuing to happen –and this is what needs to be questioned and challenged by lawyers, advocates for women’s rights, and well as the public health community.

In 1998, an impoverished woman named Tina Rodriguez was convicted in Texas for intentionally killing her son by starvation. The baby had milk in his stomach when he died, something that doesn’t happen when someone is starved, and she breastfed him (and bottle-fed) him regularly, but nevertheless Rodriguez was convicted of murder. Her post-conviction lawyer presented testimony of a nutrition specialist and a pediatric expert in malnutrition who studied the autopsy report and concluded that he may have died from a rare genetic defect that prevented him from metabolizing the milk he drank. Rodriguez lost her appeal and, despite reasonable doubts, and is serving 38 years in a Texas prison, in spite of substantial scientific evidence that she did nothing wrong.

Why is so easy to believe that women like Tina Rodriquez and Stephanie Greene want to harm their babies by neglect or intention? The moral panic about adults deliberately harming children in their care is an unfortunate reality of modern times. From hysteria about sex rings at day care centers to myths about poisoned Halloween candy, our culture is transfixed and obsessed with the idea that adults want to deliberately harm children. Adults in playgrounds without children are breaking the law, as are parents who allow their children to ride bikes without helmets. If a child is hurt in a playground, it is because their parents weren’t watching them and they should be arrested or because the playground equipment is dangerous and the designers should be sued. It is not possible that sometimes kids get hurt when they play – that is what scares us. The police state we live in makes everything a crime, especially when children are harmed. An adult must have caused this – accidents don’t happen in a society where everyone is either a victim or a perpetrator.

Mothers like Stephanie Greene and Tina Rodriguez are easy targets in this social context, because they make us feel good about ourselves. Her baby dies, but it couldn’t happen to us because we are different – we would never breastfeed after taking morphine and we would notice if our baby wasn’t metabolizing milk properly. It is too horrible to think that babies die for no reason, or that we can’t always protect our children, or that parents make mistakes. We are scared to allow our children to walk to school even in the “safest” suburbs or ride bikes without helmets – if we can afford it, we send our children to private schools when we live in neighborhoods with the very best public to have more control over their lives. Children in poor neighborhoods are on the path to being criminals, because their poverty itself is a crime, so we justify searching them with metal detectors when they go to school. If they die, we jump to their defense and arrest the parents, but, if they live, we treat them like potential criminals in the same way that we treat their parents like potential criminals. In Florida, the recent effort to drug test adults who receive welfare benefits because they are getting money from taxpayers highlights our contempt, distrust, and hatred of the poor.

If a healthy infant dies, there must be a reason – and the reason must someone who is different than us. Stephanie Greene is a monster, mocked on websites “Bad Breeders,” a place where horrible parents (mostly poor and drug-addicted) are ridiculed and targeted.

Medical associations and drug companies don’t establish hard and solid rules about pregnancy and breastfeeding and drug use because the science just isn’t there. Smoking and alcohol can contribute to miscarriages and hurt babies, and there are numerous public awareness campaigns preaching the negative effects of these behaviors, yet women still smoke and drink while pregnant and while nursing –women are not prosecuted for these behaviors. NAPW also points out that women who use drugs and pregnant and breastfeed are not being punished for using drugs but are actually being punished for being pregnant and not terminating the pregnancy. If they used drugs and terminated the pregnancy, there would not be a prosecution – the state is thus prosecuting women for being pregnant or nursing, and not for using drugs, and this is unlawful because it is essentially punishing women for having babies in spite of having a drug or health problem (like Stephanie).

Making efforts to prosecute women for killing their infants with tainted breast milk is similar to the crack-baby hysteria. In the 1980s, the media reported an epidemic of birth defects and brain damage resulting from pregnant women using crack. Yet, in 2005, University of Florida researchers Dr. Fonda Eyler, PhD, a developmental psychologist, and Dr. Marylou Behnke, MD, a neonatologist found that babies exposed to cocaine during pregnancy were no more likely to have birth defects than other babies. Interestingly, the mothers in the study were offered help but few accepted because of a state policy that often removed children from mothers in drug rehab centers. It is policies like these that discourage drug treatment and increase the likelihood that women with drug problems won’t seek help.

The effort to prosecute Stephanie Greene is a witch-hunt. Stephanie breastfed because she believed she was doing the best for her baby, and because she depended on prescribed medication to manage her medically-documented chronic pain. Women who use illegal drugs are not much different – they are drug-dependent but they want to love and nurse their infants.  The idea of a drug using pregnant or breastfeeding mother is shocking and upsetting, but there isn’t enough scientific evidence that it is the sole or primary cause of infant.  Women who use drugs and are pregnant or nursing need help and objective sources of information – not prison. Women have legal and civil rights even if they get pregnant and nurse babies, these cases violate their constitutional rights because they are not about drug use but about pregnancy. Pregnant and nursing women have human rights, and punishing their behaviors puts them in a special category that violates the reality that we all have equal protection under the law. Stephanie Greene might have been dependent on prescription drugs, but she didn’t kill her baby.

Stephanie and Randy and the rest of their family are still mourning the loss of their baby. They also have to prepare for an expensive legal battle as well as the nightmare of waiting for a criminal trial that could result in a prison sentence. After Alexis died they put up a memorial webpage for her, and Stephanie posted this on the day of her funeral: “Lexi was born “sunny side up”, and she was so sunny, such a good baby, such an angel in life, really the sunshine of our lives. We miss her beyond words…”