Is Smoking at Home Child Abuse?

By Elizabeth M. Whelan, Sc.D., M.P.H.

Last week, an upstate New York judge ordered Johnita DeMatteo to stop smoking in her home and in her car if she wanted to maintain her visitation rights with her thirteen year-old son, who lives with his father.

The judge said he made the decision to protect the health of the child.

This case has generated enormous discussion about individual rights. And it has raised some very provocative issues, particularly when the basic facts behind the judge's decision are sorted out.

Most of the coverage of this decision overlooked the obvious question: If Most of the coverage of this decision overlooked the obvious question: If judges are so concerned about protecting children from the health effects of second-hand smoke, why is a ruling like this issued only in the case of divorce?

If Johnita DeMatteo were still married — and still smoking — there would be no ruling about second-hand smoke's effect on the child. It would never have come to the court's attention. Clearly, here the claims about health effects are the means for a nonsmoking parent to gain leverage in a divorce struggle.

But the New York judge's decision raises a far, far broader question: We know beyond a shadow of a scientific doubt that childhood exposure to second-hand smoke dramatically increases the chances of respiratory infections, middle-ear effusion (fluid inside the eardrum), and the exacerbation of asthma and other respiratory symptoms. Given that reality, do parents (or others) have the "right" to smoke no matter what the consequences are for the child?

One understandable reaction to this might be: We do not live in a police state, and cigarette smoking is legal, so certainly parents have a right to smoke in their own homes.

But another reaction could be this: Given the known health consequences of a child breathing second-hand smoke, how does the right of the child to good heath stack up against the rights of the smoking parents? Some might argue, "It's no one's business but that of the family involved!" But our society will not tolerate a parent physically abusing — say, beating — a child. How is an activity that regularly imposes health risks and actual sickness upon a child any different from physical abuse?

Consider this example (which I actually observed): A young couple had two small children. The husband smoked, at home and everywhere else. The two children were constantly brought to the emergency room with severe respiratory ailments. Both underwent surgery to relieve fluid inside their eardrums. Eventually, the attending physician had enough and sternly spoke to the father, explaining in no uncertain terms that his cigarette smoke was making his children ill and that if he did not stop smoking in their presence, these illnesses would continue and lead to further health consequences.

In this case, the father quit smoking, and the children's health improved dramatically. But what if instead he had insisted on his "right" to smoke anywhere, anytime? Would society feel obligated to protect the children, as it would in the case of physical abuse? Or do cigarettes have such a protected status that no matter what harm they do to children, they will be tolerated?

Let the dialogue begin.