3 Legal Issues Stemming from Postpartum Depression

Use these links to jump to different sections:

• Detention Problems
• Criminal Issues
• Employment Insurance Issues
• What Should Be Done?

The singular moment of seeing one’s baby for the first time will turn your life upside-down; this new being will change the way you care about the world. But later, reality will set in. Full of anxious thoughts, a lack of patience and a tendency to withdraw from others, new parents face some of the most stressful times of their lives; sleepless nights, monetary strains and exhaustion can make any new parent unrecognizable. Up to 1 in 7 formerly pregnant women and 1 in 4 men who are new parents experience depression, anxiety and mood disorders in the United States each year. The American Psychological Association warns that postpartum depression (PPD) “doesn’t go away on its own. It can appear days or even months after delivering a baby; it can last for many weeks or months if left untreated. PPD can make it hard for you to get through the day, and it can affect your ability to take care of your baby, or yourself.”

Detention Problems

Legally speaking, postpartum depression is currently seen as a mental disorder. If a new parent comes into a health facility and they mention thoughts of imagined harm and or anger, a private or public health worker is obligated by law to report this to authorities. The law states that if you are a danger to yourself or others, as a result of a mental disorder, a mandatory reporter—meaning police officer, social worker, health professional, etc.—may detain you for up to 72 hours. To ensure the safety of both the parent and child, a facility will psychologically asses and evaluate the new parent. Often, crisis intervention teams will be consulted, and treatment—involving potential long-term facility placement—will be utilized. These detentions may impact your health insurance, employment, licensures, and other facets of your life. Social services will additionally open a file on your child; you will now be a part of the system.

Criminal Issues

In the past, the best chance that a mother suffering from postpartum depression would have as a defense to a crime was a verdict of “not guilty by reason of insanity.” This defense typically requires evidence of prior psychiatric problems—however, women in a postpartum period or psychosis often have no prior psychiatric history. In fact, if the insanity defense were invoked, prior high functioning could be misleading and work against them. Illinois has introduced a new law that allows women who have already been tried and convicted of a crime that was committed as a direct result of suffering from postpartum depression or postpartum psychosis to be re-sentenced. While a favorable decision can’t undo a tragedy, it can set someone on a new path to a productive life. “What an overdue and great idea this law is,” says Chicago attorney Mark DeBofsky. “Especially for some notable cases in which women with postpartum depression were not given even the slightest bit of consideration for their capacity to understand their actions due to their mental state.”

Employment Insurance Issues

DeBofsky once had a client who had a severe postpartum psychosis and was out of work for several months. Her insurance treated this instance as a psychiatric liability, and denied her claims for $100,000 in bills. “Both sides hired experts, and for the first time in my career the judge hired their own expert,” he says. “The court found that her condition was due to the physiology of pregnancy, and she was able to recover.” Plans subject to Illinois laws and the ACA must contain two primary requirements. First, the policy must cover mental health benefits and substance use disorder benefits. Second, the policy cannot establish any terms, conditions or benefits that place a greater financial burden on an individual to obtain mental health benefits than for diagnosis and treatment of medical benefits. This mental health parity applies to your disability insurance, and it prevents insurers from treating physical and mental conditions differently. “We still see insurers treating mental health issues differently than physical problems,” says DeBofsky. “For example, many insurers will now cover some mental health services for up to 24 months, where they will pay a physical injury almost indefinitely.”

What Should Be Done?

DeBofsky recommends that, even with the possible detention, one should consult with a doctor that has specialized knowledge in postpartum depressive disorders before having any baby. And that anyone experiencing thoughts of harm to themselves or newborns should immediately seek help. If the unfortunate does happen,  being detained, be sure to hire a reputable and experienced attorney who specializes in criminal defense or employment and insurance defense to be certain you are properly protected. For general information on health insurance, the uninsured, and health care providers, see our insurance coverage law overview.