A Mother Rolls Over on Her Baby in Bed. The Baby Dies. Is That a Tragedy, or a Crime?

A file photo of a bed.

Photo by Cate Gillon/Getty Images

Late last month a woman in Milwaukee woke up to find that her young daughter was dead. According to the Milwaukee Journal Sentinel, the woman told authorities that she’d been drinking and had smoked marijuana before falling asleep in the same bed as her child. At some point, it seems, the woman must have rolled on top of the infant, crushing her.

The Journal Sentinel reported that this was the city’s 10th unsafe-sleep death this year, and at least one Wisconsin state legislator decided she’d had enough. State Rep. Samantha Kerkman announced her intention to introduce a bill that would make it a felony to harm or kill an infant in the course of co-sleeping while intoxicated. “Something has to happen because we can’t just let more innocent children die,” Kerkman told 620 WTMJ.

While I’m all for keeping innocent children alive, I’m not sure legislation is the answer here.

Co-sleeping—in which parents sleep in the same bed with their young children—is a controversial practice. Its advocates maintain that co-sleeping fosters a closer relationship between parents and children, makes breastfeeding easier, and helps reduce stress and promote physical and emotional health. Its detractors say that co-sleeping is dangerous, especially when you’re talking about a very small child and an unconscious, intoxicated adult. “Safe sleep conditions are so important for babies, and deaths by intoxicated co-sleeping are so tragic and preventable,” Rep. Kerkman said.

It is unclear how the Wisconsin law would actually prevent those deaths, though. According to the Journal Sentinel, the law would punish those who harm or kill a child after co-sleeping while intoxicated, where “intoxicated” is defined as a blood-alcohol level of 0.08 or higher. But your body metabolizes alcohol at the rate of approximately .015 BAC per hour, which means that even if you go to sleep with your blood-alcohol level at 0.16, it will have dropped below the legal limit by the time you wake up six hours later. This is the implication of the phrase “sleep it off”: You go to bed drunk, and you wake up no longer drunk. As such, this proposed law would be basically impossible to implement and enforce.

By labeling drunken co-sleeping as unsafe, Kerkman is tacitly saying that sober co-sleeping is fine. And this is where it gets complicated. A Wisconsin medical examiner, expressing some reservations over Kerkman’s proposal, told the Racine, Wis., Journal Times that “less than 20 percent of sleep-related [child] deaths involve an intoxicated caregiver.”

Indeed, it doesn’t take much imagination to see how a mother could conceivably roll over on her baby while sober. You’re sick, you’re a heavy sleeper, you take some totally legal NyQuil—it could happen. Should that, too, be a crime? Here’s an actual example: In mid-October a Milwaukee woman fell asleep with her 1-month-old daughter in her arms. By morning, the child was dead. The woman said that she neither drank nor did drugs; her house was “clean and well-maintained.” But the baby is dead all the same. And if co-sleeping is to blame for her death, why should the mother’s sobriety be the sole factor determining whether or not charges are brought?

When it comes to criminalizing parenting decisions, where do you draw the line? As one of my Slate colleagues noted, pediatricians strongly recommend that parents rest their babies on their backs, not stomachs, and advise against using crib bumpers—all to prevent SIDS. You won’t be arrested, though, if you do use crib bumpers or put your baby on its stomach, because the state does not want to get too involved in telling parents how to raise their children.

I’ve argued at length that states should prosecute the parents of children who unintentionally shoot themselves or others with their parents’ guns. The big difference there is that guns are dangerous around kids regardless of whether the parent is sober or drunk. With co-sleeping, though, there’s a huge amount of gray area—so much gray area, I believe, that legislation is not the best way to deal with this particular issue.