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2013 Tennessee Attorney General Reports and Opinions 1 (2013)

handle is hein.sag/sagtn0157 and id is 1 raw text is: STATE OF TENNESSEE OFFICE OF THE ATTORNEY GENERAL PO BOX 20207 NASHVILLE, TENNESSEE 37202 February 1, 2013 Opinion No. 13-01 (Revised) Liability for Infants Born with Narcotic Drug Dependency QUESTION If a child is born with a narcotic drug addiction or with birth defects resulting from maternal use of narcotic drugs, may the child's condition result in a finding of criminal or civil liability against either the mother or other individuals who were involved in unlawfully furnishing these drugs to the mother? OPINION Provided that the essential elements are established by sufficient proof, individuals involved in unlawfully furnishing narcotic drugs to the mother may be found liable in a criminal action for a newborn child's addiction or birth defects resulting from the maternal drug use. Recent amendments to Tennessee law would preclude any criminal liability of the mother for the newborn child's addiction or birth defects. The civil liability of the mother or other individuals involved in unlawfully furnishing these drugs to the mother would depend upon the specific facts and circumstances presented. ANALYSIS Pursuant to Tenn. Code Ann. § 39-13-107(a), a human embryo or fetus at any stage of gestation in utero may be a victim of any of the assaultive offenses listed in Title 39, Chapter 13, Part 1. Prior to July 1, 2012, this statute was broad enough to include finding a mother criminally liable for ingesting narcotic drugs while pregnant if her child was born addicted to or harmed by the drugs, assuming sufficient proof of causation and of intent or knowledge. Tenn. Code Ann. § 39-13-107 (2011); Tenn. Att'y Gen. Op. 08-114 (May 21, 2008). Likewise, these circumstances prior to July 1, 2012, might have subjected the mother to criminal liability for criminal homicide under Title 39, Chapter 13, Part 2, if her baby were to die as a result of maternal use of narcotic drugs. See Tenn. Code Ann. § 39-13-214(c) (2011). However, effective July 1, 2012, the General Assembly amended these governing statutes, substituting language that expressly exempts from criminal liability any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant. Tenn. Pub. Acts ch. 1006, §§ 2 & 4. See also Tenn. Code Ann. § 39-13-107(c); Tenn. Code Ann. § 39-13-214(c). Because the statute is clear

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