By junior year of high school, Desseray Wright was already a mother and didn’t expect to become pregnant again so soon. 

The Bronx, New York, teen was juggling raising a toddler and dreaming about becoming a lawyer. Sometimes, she would hang out with her friends and occasionally smoked weed. Then one day, despite still getting her period, she found out she was pregnant. She was more than 24 weeks along — too late to consider an abortion. Because Wright smoked weed for several months into her pregnancy, she told a health care provider during a routine prenatal visit. It would be an admission she’d later regret. 

After giving birth at a Bronx hospital in 1995, she noticed a bag on her baby’s scrotum, and demanded answers. Hospital staff told her her son had been drug tested, but didn’t explain why. Then a social worker entered her room, questioning her about marijuana use. Within the first hour of her newborn son Trayquan’s life, she had lost custody.

“I was honest and truthful with this lady,” recalled Wright, now 47 and a family defense practice policy advocate for the Bronx Defenders. She explained that back then she believed child protective services were only called when there were allegations of abuse.

While some policies have changed since Wright’s case nearly 30 years ago, health care advocates and legal experts Capital B interviewed said across the country these types of interventions and drug testing without consent still disproportionately target Black and brown mothers. 

At the center of the disparities, they say, are gaps in federal privacy laws — including the Health Insurance Portability and Accountability Act (HIPAA) — which do not require hospitals to inform patients when they are tested for drugs.

Civil rights organizations, including those led by justice-impacted Black women like Wright, argue that these covert tests have fueled a long-standing pattern of criminalizing Black and brown women in family courts and separating families under the guise of child protection. These women turned their personal pain into advocacy, calling for legislation to close HIPAA loopholes to prevent other mothers from being swept into both the criminal and family court systems instead of parenthood.

There has been legislation introduced in recent years in states like California, New York, and Tennessee — where women have been prosecuted for using drugs while pregnant — to inform expectant mothers that they and their newborn are being tested for drugs. They also have the choice to opt out of those tests.  

“Disproportionate drug screening of Black mothers and newborns, without consent, adds to the excessive surveillance of Black families, and leads to an increase in foster care placements,” according to a May 2024 report released by New York State’s Advisory Committee to the U.S. Commission on Civil Rights, “Examining the New York Child Welfare System and Its Impact on Black Children and Families.”

Last month, the New York state Senate Health Committee passed the Maternal Health, Dignity, and Consent Act on an 11-2 vote. 

This bill “is a clear statement that pregnant people do not deserve to be surveilled or criminalized,” Jamila Perritt, who is an OB-GYN and president & CEO of Physicians for Reproductive Health, said in a statement after the bill’s advancement on May 13. 

In Wright’s case, child protective services required her to attend family court compliance hearings for parenting classes and a drug treatment program — even though, she said, in the 1990s those services weren’t designed for adolescents or applicable to marijuana use. After months of juggling two children and long commutes on public transportation from the Bronx to mostly unhelpful referrals across most of the five boroughs, Wright made the difficult decision to drop out of high school to focus on getting her son back.

Capital B has reached out to New York’s Office of Child and Family Services via email for comment about its policies. A spokesperson responded on June 10 to say that they do not comment on pending legislation.

“I remember the feeling that I felt of losing my child.”

Advocates and survivors interviewed by Capital B often refer to the combined family, child welfare, and criminal legal systems as “family-policing systems.”

Pregnant people go into labor inside a hospital almost every day. Between contractions, they, or their partner, may be handed a flood of documents. Included may be a form with legal language that could authorize a nurse practitioner or physician to drug test both the birthing person and their newborn, without clear consent or probable cause.

“The hospitals that are participating in this, it’s people of color who are more impacted, and at more disproportionate rates,” said Stephanie Jeffcoat, founder of Families Inspiring Reentry & Reunification 4 Everyone. The organization helps impacted parents navigate multiple interlocking systems such as the family and criminal justice systems, and is part of the steering committee working on establishing informed consent in California. 

Jeffcoat and Wright say the system is broken due to social workers and other professionals with mandated reporting credentials. Jasmine Sankofa, executive director of the nonprofit organization Movement for Family Power, which is dedicated to abolishing the family policing system, agrees with them.

“There really isn’t any research that justifies the use of mandated reporting, the use of test and report,” Sankofa said, adding, “It’s bias based. It’s not research based.” 

She added that “studies have found that even if a pregnant person was using substances while they were pregnant — even if a child is born and is experiencing neonatal abstinence syndrome, for example — the recommended treatment is the approach is called, ‘eat, sleep, and console.’” 

The best health care for a newborn isn’t separation, nor is it to test and report their birthing parent to a family-policing system, Sankofa added.

In cases where mom or baby test positive, child protective services are contacted. 

As the parent goes back and forth to court, the baby is first placed in a foster home, and because of the Adoption and Safe Families Act enacted by former President Bill Clinton in 1997, within 15 months “states must initiate termination of parental rights proceedings, except in specified circumstances.” 

Despite her specific circumstances, the California child welfare system still took Jeffcoat’s daughter, Harmony Faith Chase, from her nine years ago.

Jeffcoat survived being raped, and found out she was pregnant too late for an abortion. At the time she was 28, unhoused, and struggled with substance use. She didn’t have health insurance, couldn’t afford an abortion, and had an estranged relationship with her mother, who had custody of her two older children. 

One day, she went to a hospital in Orange County for an eye infection. That’s when she later learned she was tested for drugs. 

Jeffcoat’s next visit to the hospital was when she delivered her daughter via C-section. The first hour of Harmony’s life was interrupted when a social worker took her away from her mom’s arms and was placed into the foster care system — never to be in the care of her mother again. 

“I remember the feeling that I felt of losing my child,” said Jeffcoat, now 37. 

In 2023, a bill was introduced in California that would, in part, prohibit medical personnel from performing a drug or alcohol test or screen on a pregnant person or a newborn without prior written and verbal informed consent, and would require the test or screen to be medically necessary to provide care. That bill failed to advance from the state’s Senate health committee in March 2023. 

Jeffcoat is currently studying law to become an attorney in dependency law.

“I feel like my own attorney failed me,” she said. “I want to really be up in there [court] making sure that parents aren’t losing their kids to the system. Especially in the timeframe of the adoption, it should not have been able to take place in six months. It takes longer for people to be sentenced to jail or prison.”

Jeffcoat said she lost custody of Harmony in 2017 while incarcerated for 6½ months for a probation violation. Family court proceedings went on without her being present. 

Once released, she spiraled deeper into her addiction. In 2019, she had a fight with another unhoused person about her bike. After waking up nearby a dumpster, it was the moment she said she decided to turn her life around. She contested the adoption. In 2021, she found the adopting parents. For three years, Jeffcoat said she reached out to them with hopes to create a post-adoption agreement to at least regain visitation rights, to no avail. 

“I needed to make sure that I get into a position to ensure that they do not continue to do this to other people,” said Jeffcoat, who launched her nonprofit in 2023.

“The police, to me, are not simply somebody in a police uniform.”

Perritt, the doctor who is also a fellow of the American College of Obstetricians and Gynecologists and the Society of Family Planning, said people “universally enter” health care professions “because they want to change social justice issues, but during the course of medical education and training you are taught to conform to a system that exists already in order to survive it.”

The history of the medical field being white and male, increases Perritt’s beliefs that health care professionals teaming up with police goes back to the country’s Founding Fathers. 

“The police, to me, are not simply somebody in a police uniform. It’s also the doctors, it’s also the nurses, it’s also the social workers. It’s any and everybody who’s a mandatory reporter.”

Hospitals and health care providers often set their own drug testing and reporting policies — ones that can conflict with the ethical standards taught in medical training, particularly around informed consent and patient trust. In a notable shift, Mass General Brigham, a major hospital system in Boston, stopped automatically filing child neglect reports solely based on a newborn testing positive for drugs, citing a need to reduce unnecessary family separations.

Drug testing shouldn’t be considered a family testing system, advocates said.

In 1996, after Wright lost custody of Trayquan, who was placed in her father’s care, her troubles with the family-policing systems continued when she got pregnant with her third child and second son, Hassan. With an ongoing family court case, the newborn was immediately taken away and placed into a foster home in Brooklyn, New York. Hassan was there for nearly four years.

Child protective services continued to return to Wright’s life twice: when she went to federal prison for 10 years for a weapons and drug conviction, and survived a domestic violence incident by calling 911.

After Wright was released from federal prison in 2013, she earned a criminal justice degree from John Jay College of Criminal Justice. She mourned the loss of her oldest daughter to gun violence in 2018, and in 2021 held on tight to Hassan, now 28, when he survived being shot.

“I graduated at the top of my class,” Wright said.