The Arizona Court of Appeals has ruled that a mother who gives birth to a baby with cannabis in its system cannot be charged with child neglect if she has a physician’s recommendation to use cannabis legally, Tuscon.com reports. The decision overturns a move by the Department of Child Safety (DCS) to put the mother on the agency’s “Central Registry” of parents who are found to have committed acts of child abuse and neglect.
In the ruling, Judge Randall Howe, writing for the unanimous three-judge panel, said officials committed an error by not considering the evidence that the mother was lawfully enrolled in Arizona’s medical cannabis program and that the 2010 Arizona Medical Marijuana Act (AMMA) provides immunity for those with a state-issued medical cannabis card from being subject to arrest, prosecution, penalty, or denial of any right or privilege.
DCS had argued that the mother never told the recommending physician that she was pregnant – which the mother refutes but Howe said was irrelevant, the report says. The panel determined that under the state’s child-welfare laws, pregnant women cannot be charged with abuse and neglect if they are lawfully taking medications “under the direction of a physician” and that since the mother was legally accessing cannabis under a physician’s order, DCS cannot take action against her.
In the decision, Howe did note that the U.S. government “does not recognize the medical value of marijuana” and “the Center for Disease Control and Prevention warns of the effects of marijuana use during pregnancy.’’
The doctor said that she warned the mother that using cannabis could result in her being reported to DCS once she gave birth if cannabis was found in the baby’s system but that the mother is “likely to receive therapeutic or palliative benefit from … the use of marijuana to treat or alleviate the qualifying patient’s debilitating medical condition,” the report says.
The baby also tested positive for an anxiety drug, caffeine, and the antihistamine drug Benadryl which led to a report to DCS that the child had been born “substance-exposed.”
“Under AMMA, then, she is presumed to have taken marijuana for ‘medical use,’ which means taking it to treat or alleviate her medical condition or symptoms,’’ Howe wrote. “And her marijuana use is the equivalent of taking any other medication under the direction of a physician.’’
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