Ask a Weed Lawyer: Can I Smoke Weed While I’m Pregnant?

'Can you' and 'should you' are two different questions.

John Bussman is a criminal defense attorney in Orange County, California. He is an expert on marijuana law, a member of the NORML Legal Committee, and a longtime supporter of drug policy reform.

Q: What If I Smoke Weed While I’m Pregnant?

I’ll preface this by attempting to cover my ass with both hands. I am a doctor of jurisprudence, not a medical doctor. I am qualified to dispense legal advice, not medical advice. I am a parent, but I am not equipped to tell anyone else how to raise their kids. I observed the births of both of my children, but I have never been pregnant. This is not a parenting column or a mommy blog. It is a brief overview of some of the legal considerations that may come into play if you consume cannabis while you are pregnant, nursing or around children. 

If you consume cannabis while you are pregnant, nursing or around children, there are several different ways that you may become entangled in the legal system. Depending on the jurisdiction, you may be criminally prosecuted or dragged into family court to fight for custody of your children.

At last count, 47 states have laws within their child protective statutes that specifically address substance abuse by parents (that’s every state except Connecticut, New Jersey and Vermont). The remaining states may shoehorn “substance abuse” in with other, general “child welfare” statutes.

Mothers may be criminally prosecuted for “child abuse” in some jurisdictions merely for consuming cannabis in a home where a child is present.

The nuts and bolts vary by state, but local child protective laws usually start by designating various people as “mandatory reporters.” Mandatory reporters include adults who are best situated to detect “red flags” of potential child abuse or neglect -- teachers, school principals, therapists, doctors, nurses, etc. If a mandatory reporter observes signs of abuse or neglect, then he or she is obligated to report those observations to the Bureau of Child Protective Services or their local equivalent, who will then initiate an investigation. If the investigation uncovers evidence that the child is unsafe at home, then the local government may take remedial measures to ensure the child’s safety. This can include ordering a parent to attend mandatory classes and counseling, or it may include legal action to remove the child from the home and to place the child in a safer environment. The primary concern in these types of legal proceedings is always the child’s welfare.

Even in “marijuana-friendly” states, harsh policies break up families and punish mothers without any strong scientific consensus about the dangers of consuming cannabis while pregnant or nursing

To complicate matters, the drug tests that hospitals typically administer to pregnant women and newborn babies are notoriously prone to giving false positives. According to a study published by the University of Kansas, methamphetamine screens are inaccurate somewhere between 26-70% of the time. In 2012, one hospital in North Carolina became concerned about the high rates of infants who were testing positive for THC. Upon investigation, doctors discovered that residue from some commonly used baby shampoo was responsible for falsely triggering the positive drug tests.

Image via AATTP.org

In California, a positive drug test at the time of birth is not, by itself, grounds for a hospital to report suspected child abuse. BUT, if mandatory reporters receive any indication that a mother is abusing drugs, then Child Protective Services must perform an investigation to evaluate the needs of the parent and the child. If other factors indicate that the parent is unable to safely care for the child because of the parent’s substance abuse, then further legal actions may be taken.

Aside from losing custody of your kids, you must consider the possible criminal consequences of consuming cannabis while pregnant, nursing or around children. Every state has laws against committing crimes in the presence of children, crimes that may endanger children, and crimes that actually result in bodily harm to children. Again, the details will vary by state. 

Mothers may be criminally prosecuted for “child abuse” in some jurisdictions merely for consuming cannabis in a home where a child is present. In other states, the presence of children during the commission of a crime can be treated as an “enhancement” which potentially adds years to the prison sentence upon conviction for the underlying crime.