Article by Rx MaryJane (Teri Robnett) vice chair, CO NORML Board of Directors, founder, Cannabis Patients Alliance (www.cannabispatientsalliance.org)

When dealing with policy, marijuana and otherwise, we often hear how “we need to send a message.” When legislators thought they needed to require marijuana shops to post signs warning pregnant women about the dangers - dare I say evils? - of consuming marijuana during pregnancy and breastfeeding, I had to wonder what message that sends to case workers in our child welfare system.

In Colorado, babies are routinely tested for drugs at birth. From the Colorado Department of Public Health’s Marijuana Pregnancy and Breastfeeding Guidance for Colorado Healthcare Providers:

If pregnant women report their substance use to their prenatal health care provider and/or have a positive drug test during a prenatal care visit, Colorado law prevents that information from being used in criminal prosecution. (C.R.S. § 13-25-136)

Tetrahydrocannabidol (THC), both recreational and medical, is considered a Schedule 1 drug under federal and Colorado law. (C.R.S. § 18-18-203)

Current Colorado law defines a baby testing positive at birth for a Schedule I substance (including recreational or medical THC or other drugs) as an instance of child neglect, which requires a report to social services. (C.R.S. § 19-3-102)

Please inform your patient: Marijuana is now legal for adults over 21. But this doesn’t mean it is safe for pregnant moms or babies. Some hospitals test babies after birth for drugs. If your baby tests positive for THC at birth, Colorado law says child protective services must be notified.

Despite the passage of laws allowing both medicinal use and adult recreational use of cannabis, patients and consumers still face challenges when it comes to parenting.

  • Cannabis consumption or cultivation is routinely used as a wedge issue in child custody cases.
  • Caring adults are kept from being foster parents, even to family members, if they consume cannabis.
  • Parents who work in the marijuana industry are often disparaged by neighbors and other parents with comments like, “You feed your kids with drug money.”
  • Parents of pediatric cannabis patients are often targeted by doctors, hospitals and social services, facing tougher scrutiny because of their choice to use cannabis to heal their child.

When it comes to cannabis and the child welfare system, the guidelines are murky at best. How a cannabis-consuming parent is treated depends on what county they happen to live in and what case worker is assigned. When child welfare gets involved, frightened parents just hope that they live in a more progressive county and manage to get a sympathetic case worker. Otherwise, they could be in for a bumpy ride.

In light of the passage of Amendment 64 and Amendment 20 before it, together legalizing the medicinal and recreational use of cannabis, the laws involving cannabis consumption and children desperately need clarification and updating to reflect this change in status.

The smell of marijuana is no longer an indication of illegal activity. Neither is the presence or cultivation of marijuana in the home or employment in the marijuana industry. These are all legal activities under Colorado law.

Those who choose to consume cannabis, whether medicinally or recreationally, are not criminals or child abusers and should not be treated as such. Not by law enforcement. And certainly not by child welfare.