Jennifer Clarice JOHNSON, Petitioner,

STATE of Florida, Respondent
Supreme Court of Florida
602 So.2d 1288 (1992)

 [p. 1290] HARDING, Justice.

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 The issue before the court is whether section 893.13(1)(c)(1), Florida Statutes (1989), permits the criminal prosecution of a mother, who ingested a controlled substance prior to giving birth, for delivery of a controlled substance to the infant during the thirty to ninety seconds following the infant's birth, but before the umbilical cord is severed.

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 . . . [T]he [paramount] rules of statutory construction in the criminal context . . . [include] the rule of strict construction [and] the rule of lenity.  § 775.021(1), Fla. Stat. (1989).

 The rules of statutory construction require courts to strictly construe criminal statutes, and that "when the language is susceptible to differing constructions, [the statute] shall be construed most favorably to the accused."  § 775.021(1).  In strictly construing criminal statutes, we have held that only those terms which are " 'clearly and intelligently described in [a penal statute's] very words, as well as manifestly intended by the Legislature' " are to be considered as included in the statute.  State v. Wershow, 343 So.2d 605, 608 (Fla.1977), quoting Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927).  We find that the legislative history does not show a manifest intent to use the word "delivery" in the context of criminally prosecuting mothers for delivery of a controlled substance to a minor by way of the umbilical cord.  This lack of legislative intent coupled with uncertainty that the term "delivery" applies to the facts of the instant case, compels this Court to construe the statute in favor of Johnson. . . .

 Johnson appeals from two convictions for delivering a controlled substance to her two minor children in violation of section 893.13(1)(c) 1., Florida Statutes (1989). [n. 1]  The [p. 1291] state's theory of the case was that Johnson "delivered" cocaine or a derivative of the drug to her two children via blood flowing through the children's umbilical cords in the sixty- to-ninety second period after they were expelled from her birth canal but before their cords were severed. . . .

1. Section 893.13(1)(c)1., Florida Statutes (1989) provides as follows:
893.13 Prohibited acts;  penalties.--

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(c) Except as authorized by this chapter, it is unlawful for any person 18 years of age or older to deliver any controlled substance to a person under the age of 18 years, or to use or hire a person under the age of 18 years as an agent or employee in the sale or delivery of such a substance, or to use such person to assist in avoiding detection or apprehension for a violation of this chapter.  Any person who violates this provision with respect to:
1. A controlled substance ... is guilty of a felony of the first degree....

 . . . . On October 3, 1987, Johnson delivered a son.  The birth was normal with no complications.  There was no evidence of fetal distress either within the womb or during the delivery.  About one and one-half minutes elapsed from the time the son's head emerged from his mother's birth canal to the time he was placed on her stomach and the cord was clamped.

 The obstetrician who delivered Johnson's son testified he presumed that the umbilical cord was functioning normally and that it was delivering blood to the baby after he emerged from the birth canal and before the cord was clamped. Johnson admitted to the baby's pediatrician that she used cocaine the night before she delivered.  A basic toxicology test performed on Johnson and her son was positive for benzoylecgonine, a metabolite or "breakdown" product of cocaine.

 In December 1988, Johnson, while pregnant with a daughter, suffered a crack overdose.  Johnson told paramedics that she had taken $200 of crack cocaine earlier that evening and that she was concerned about the effects of the drug on her unborn child.  Johnson was then taken to the hospital for observation.

 Johnson was hospitalized again on January 23, 1989, when she was in labor.  Johnson told Dr. Tompkins, an obstetrician, that she had used rock cocaine that morning while she was in labor.  With the exception of finding meconium stain fluid in the amniotic sack, there were no other complications with the birth of Johnson's baby daughter.  Approximately sixty-to-ninety seconds elapsed from the time the child's head emerged from her mother's birth canal until her umbilical cord was clamped.

 The following day, the Department of Health and Rehabilitative Services investigated an abuse report of a cocaine baby concerning Johnson's daughter. Johnson told the investigator that she had smoked pot and crack cocaine three to four times every-other-day throughout the duration of her pregnancy with her daughter.  Johnson's mother acknowledged that Johnson had been using cocaine for at least three years during the time her daughter and son were born.

 At Johnson's trial, Dr. Tompkins testified that a mother's blood passes nutrients, oxygen and chemicals to an unborn child by a diffusion exchange at the capillary level from the womb to the placenta.  The umbilical cord then circulates the baby's blood (including the exchange from its mother) between the placenta and the child.  Metabolized cocaine derivatives in the mother's blood thus diffuse from the womb to the placenta, and then reach the baby through its umbilical cord.  Although the blood flow is somewhat restricted during the birthing process, a measurable amount of blood is transferred from the placenta to the baby through the umbilical cord during delivery and after birth.

 Dr. Shashi Gore, a pathologist and toxicologist, testified that cocaine has a half life of about one hour.  This means that half of the amount of the drug remains in a person's blood stream for about one hour.  The remainder gradually decreases over a period of forty-eight to seventy-two hours. . . .

 [p. 1292] When Dr. Gore was asked whether a woman who had smoked cocaine at 10:00 p.m. and again between 6:00 and 7:00 a.m. the following morning and delivered a child at 1:00 p.m. that afternoon would still have cocaine or benzoylecgonine present in her blood stream at the time of delivery, the response was yes.  When asked whether a woman who had smoked cocaine sometime the night before delivering a child at 8:00 in the morning would still have cocaine or benzoylecgonine in her system at the time of the child's birth, the response again was yes.

 Dr. Stephen Kandall, a neonatologist, testified for the defense that it was impossible to tell whether the cocaine derivatives which appeared in these children's urine shortly after birth were the result of the exchange from the mother to her children before or after they were born because most of it took place from womb to the placenta before the birth process was complete.

 He also testified that blood flow to the infant from the placenta through the umbilical cord to the child is restricted during contractions.  Cocaine also constricts the passage of blood dramatically but benzoylecgonine does not.  Dr. Kandall admitted that it is theoretically possible that cocaine or other substances can pass between a mother and her baby during the thirty-to-sixty- second period after the child is born and before the umbilical cord is cut, but that the amount would be tiny.

 [We hold] there was no medical testimony adequate to support the trial court's finding that a "delivery" occurred here during the birthing process, even if the criminal statute is applicable.  The expert witnesses all testified about blood flow from the umbilical cord to child.  But that blood flow is the child's and the placenta through which it flows, is not part of the mother's body.  No witness testified in this case that any cocaine derivatives passed from the mother's womb to the placenta during the sixty-to-ninety seconds after the child was expelled from the birth canal.  That is when any "delivery" would have to have taken place under this statute, from one "person" to another "person."

 Further, there was no evidence that Johnson timed her dosage of cocaine so as to be able to transmit some small amount after her child's birth.  Predicting the day or hour of a child's birth is difficult to impossible even for experts.  Had Johnson given birth one or two days later, the cocaine would have been completely eliminated, and no "crime" would have occurred.  But since she went into labor which progressed to birth after taking cocaine when she did, the only way Johnson could have prevented the "delivery" would have been to have severed the cord before the child was born which, of course, would probably have killed both herself and her child.  This illustrates the absurdity of applying the delivery-of-a-drug statute to this scenario.

 However, in my view, the primary question in this case is whether  section 893.13(1)(c)1. was intended by the Legislature to apply to the birthing process.  Before Johnson can be prosecuted under this statute, it must be clear that the Legislature intended for it to apply to the delivery of cocaine derivatives to a newborn during a sixty-to-ninety second interval, before severance of the umbilical cord. . . .

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 In 1982, sections 415.501-514 were enacted to deal with the problem of child abuse and neglect.  The Legislature determined that because of the impact that abuse or neglect has on a victimized child, siblings, family structure, and inevitably on all citizens of the state, the prevention of child abuse and neglect is a priority of this state.  § 415.501, Fla. Stat. (1989).  To further this end, the Legislature required that a comprehensive approach for the prevention of abuse and neglect of children be developed for the state. Id.  The statute defined an "abused or neglected child" as a child whose physical or mental health or welfare was harmed, or threatened with harm, by the acts of omissions of the parent or other person responsible for the child's welfare.  As originally defined, "harm" included physical or mental injury, sexual abuse, exploitation, abandonment, and neglect.  § 415.503(7), Fla. Stat. (1983)

 In 1987, a bill was proposed to broaden the definition of "harm" to include physical dependency of a newborn infant upon certain controlled drugs. However, there was a concern among legislators that this language might authorize criminal prosecutions of mothers who give birth to drug-dependent children.  Comment, A Response to "Cocaine Babies"--Amendment of Florida's Child Abuse and Neglect Laws to Encompass Infants Born Drug Dependent, 15 Fla.S.U.L.Rev. 865, 877 (1987). [n. 4]  The bill was then amended to provide that no parent of a drug-dependent newborn shall be subject to criminal investigation solely on the basis of the infant's drug dependency.  In the words of the sponsor of the House bill:

4. The staff analysis of this bill noted that the legislation, as written, provided a likelihood that a parent could be criminally prosecuted under chapter 893 for delivering a drug dependent child.
This clearly states that the individual would not be subject to any investigation solely upon the basis of the infant's drug dependency.
The prime purpose of this bill is to keep the families intact.  It's not for the purpose of investigation.

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Again, there is a well-founded anxiety that we are looking to arrest Moms. We're not looking to do that.  What we are looking to do is we're looking to intervene on behalf of many different state policies....
 [p. 1294] The bill was passed by the Legislature and the changes were codified in section 415.503(9)(a)2.  Ch. 87-90 § 1, Laws of Fla.

 From this legislative history, it is clear that the Legislature considered and rejected a specific statutory provision authorizing criminal penalties against mothers for delivering drug-affected children who received transfer of an illegal drug derivative metabolized by the mother's body, in utero.  In light of this express legislative statement, [we] conclude that the Legislature never intended for the general drug delivery statute to authorize prosecutions of those mothers who take illegal drugs close enough in time to childbirth that a doctor could testify that a tiny amount passed from mother to child in the few seconds before the umbilical cord was cut.  Criminal prosecution of mothers like Johnson will undermine Florida's express policy of "keeping families intact" and could destroy the family by incarcerating the child's mother when alternative measures could protect the child and stabilize the family. Comment, A Response to "Cocaine Babies", 15 Fla.S.U.L.Rev. at 881.

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 There can be no doubt that drug abuse is one of the most serious problems confronting our society today.  National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1395, 103 L.Ed.2d 685 (1989).  Of particular concern is the alarming rise in the number of babies born with cocaine in their systems as a result of cocaine use by pregnant women.  Some experts estimate that as many as eleven percent of pregnant women have used an illegal drug during pregnancy, and of those women, seventy-five percent have used cocaine.  Report of the American Medical Association Board of Trustees, Legal Interventions During Pregnancy, 264 JAMA 2663 (Nov. 28, 1990).  Others estimate that 375,000 newborns per year are born to women who are users of illicit drugs.  American Public Health Association 1990 Policy Statement.

 It is well-established that the effects of cocaine use by a pregnant woman on her fetus and later on her newborn can be severe.  On average, cocaine-exposed babies have lower birth weights, shorter body lengths at birth, and smaller head circumferences than normal infants.  264 JAMA at 2666.  Cocaine use may also result in sudden infant death syndrome, neural-behavioral deficiencies as well as other medical problems and long-term developmental abnormalities. American Public Health Association 1990 Policy Statement.  The basic problem of damaging the fetus by drug use during pregnancy should not be addressed piecemeal, however, by prosecuting users who deliver their babies close in time to use of drugs and ignoring those who simply use drugs during their pregnancy.

 Florida could possibly have elected to make in utero transfers criminal.  But it chose to deal with this problem in other ways.  One way is to allow evidence of drug use by women as a ground for removal of the child to the custody of protective services, as was done in this case.  Some states have responded to this crisis by charging women with child abuse and neglect.  See In re Baby X, 97 Mich.App. 111, 293 N.W.2d 736 (1980) (newborn suffering from narcotics withdrawal symptoms due to prenatal maternal drug addiction is neglected and within jurisdiction of the probate court);  In re Smith, 128 Misc.2d 976, 492 N.Y.S.2d 331 (N.Y.Fam.Ct.1985) (person under Family Court Act includes unborn child who is neglected as the result of mother's conduct); In re Ruiz, 27 Ohio Misc.2d 31, 27 O.B.R. 350, 500 N.E.2d 935 (Com.Pl.1986) (mother's use of heroin close to baby's birth created substantial risk to the health of the child and constituted child abuse).

 However, prosecuting women for using drugs and "delivering" them to their newborns appears to be the least effective response to this crisis.  Rather than face the [p. 1296] possibility of prosecution, pregnant women who are substance abusers may simply avoid prenatal or medical care for fear of being detected.  Yet the newborns of these women are, as a group, the most fragile and sick, and most in need of hospital neonatal care.  A decision to deliver these babies "at home" will have tragic and serious consequences.  As the Board of Trustees Reports notes:

[C]riminal penalties may exacerbate the harm done to fetal health by deterring pregnant substance abusers from obtaining help or care from either the health or public welfare professions, the very people who are best able to prevent future abuse.  The California Medical Association has noted:
While unhealthy behavior cannot be condoned, to bring criminal charges against a pregnant woman for activities which may be harmful to her fetus is inappropriate.  Such prosecution is counterproductive to the public interest as it may discourage a woman from seeking prenatal care or dissuade her from providing accurate information to health care providers out of fear of self- incrimination.  This failure to seek proper care or to withhold vital information concerning her health could increase the risks to herself and her baby.
Florida's Secretary of Health and Rehabilitative Services has also observed that potential prosecution under existing child abuse or drug use statutes already 'makes many potential reporters reluctant to identify women as substance abusers.'  (footnotes omitted)
 264 JAMA at 2669.  See also Commonwealth v. Pellegrini, No. 87970 (Mass. Superior Court Oct. 15, 1990) (by imposing criminal sanctions, women may turn away from seeking prenatal care for fear of being discovered, undermining the interests of the state in protecting potential human life).  Prosecution of pregnant women for engaging in activities harmful to their fetuses or newborns may also unwittingly increase the incidence of abortion.

 Such considerations have led the American Medical Association Board of Trustees to oppose criminal sanctions for harmful behavior by a pregnant woman toward her fetus and to advocate that pregnant substance abusers be provided with rehabilitative treatment appropriate to their specific psychological and physiological needs.  264 JAMA at 2670.  Likewise, the American Public Health Association has adopted the view that the use of illegal drugs by pregnant women is a public health problem.  It also recommends that no punitive measures be taken against pregnant women who are users of illicit drugs when no other illegal acts, including drug-related offenses, have been committed.  See 1990 Policy Statement.

 In summary, [we] hold that section 893.13(1)(c)1. does not encompass  "delivery" of an illegal drug derivative from womb to placenta to umbilical cord to newborn after a child's birth.  If that is the intent of the Legislature, then this statute should be redrafted to clearly address the basic problem of passing illegal substances from mother to child in utero, not just in the birthing process.

 . . . . At oral argument the State acknowledged that no other jurisdiction has upheld a conviction of a mother for delivery of a controlled substance to an infant through either the umbilical cord or an in utero transmission;  nor has the State submitted any subsequent authority to reflect that this fact has changed.  The Court declines the State's invitation to walk down a path that the law, public policy, reason and common sense forbid it to tread.  Therefore, we quash the decision below, answer the certified question in the negative, and remand with directions that Johnson's two convictions be reversed.

 It is so ordered.