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Univ. of San Diego School of Law

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Sunday, April 2, 2006

Texas Court: "Delivery" Does not Include to Unborn

The Texas Court of Appeals has held that pregnant women cannot be charged with "delivery" of controlled substances to their unborn fetuses as a result of taking drugs and having then transmitted via the placenta. Opinion here.  The critical language: "Nowhere are we cited to evidence suggesting that the unborn child actually handled, touched, manipulated or otherwise exercised physical possession over the drug. Again, the substance was merely discovered in the unborn child's body."  This seems unquestionably wrong to me.  If A injects B with a syringe of a controlled substance (whether B requests this or not) A has "delivered" a controlled substance to B.  See, e.g., Stanford v. State,
1988 WL 113997 ( Tex. App. 1988). [Jack Chin] 

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