After 13 infants were abandoned in the Houston, Texas, area within a 10-month period in 1999, state lawmakers acted to encourage desperate parents to leave their children in a safe location rather than simply abandoning them. Since the Texas law was adopted, 34 more states, including Michigan, have enacted so-called “safe haven” laws. All the statutes generally promise that women who relinquish unharmed infants in designated safe places will not be prosecuted or provide that abandonment in compliance with the law constitutes an affirmative defense to prosecution.
The infants referred to are those abandoned in public places—other than hospitals—such as parks, roadsides and dumpsters. They also are known as “discarded infants” and should be distinguished from “boarder babies,” who are abandoned in hospitals due to pre- or perinatal drug or HIV exposure as described in the Abandoned Infants Assistance Act (P.L. 104-23). In the law, Congress defined abandoned infants as “…infants and young children who are medically cleared for discharge from acute care hospital settings but who remain hospitalized because of a lack of appropriate out-of-hospital placement alternatives.”
Most states have child abandonment laws that allow authorities to prosecute parents or caretakers who willingly and permanently abandon their children. The goal of the new safe haven laws is to allow a parent to safely leave a baby without fear of prosecution for child abandonment and without resorting to the dangerous practice of leaving an infant in a trash bin, in a wooded area or beside a highway. Thirty-five states (including 19 that passed laws in the 2001 session) now have some type of safe haven legislation. Most of the laws designate hospitals, emergency medical services, fire stations and police stations as safe locations. One exception is New York, which stipulates that the baby may be left with a suitable person or may be left in a suitable location so long as an appropriate person is promptly notified. Immunity is granted generally to employees who are required to accept and care for relinquished infants. About half of the states will not prosecute parents who relinquish unharmed infants. The remainder allow an affirmative defense to prosecution. State laws vary on the age of infants who may be relinquished. The ages range from 72 hours old or younger up to 5 days old or younger. The most common ages found in the statues are 72 hours and 30 days.
Twenty-four states do allow for anonymity, in which the person leaving the child is not required to disclose any information or may remain anonymous. The laws state that the receiving entity may request relevant medical history information about the infant and the infant’s parents, but the parents are not required to provide that or any other information. Most of the laws also require that the receivers offer the parent written or verbal information about the safe haven law, what will happen to the baby, adoption alternatives and how to contact social services. They also may offer medical history forms that the parent may voluntarily and anonymously mail in later. The goal of the anonymity provisions is to encourage women to safely surrender their infants without fear of identifying themselves.
Termination of Parental Rights
The anonymity provisions, while meant to encourage parents to safely drop off their newborns, create difficulties for the child welfare and legal systems. In order to free abandoned infants for adoption, states must hold termination of parental rights proceedings in court to remove a parent’s legal rights and obligations to his or her child. To abide by constitutional requirements for due process for parents, the state must attempt to locate and notify the parents of the termination proceeding and give them an opportunity to respond and appear in court. Twenty-one states address the termination of parental rights proceeding notification requirement in several different ways. Generally, they either state that the act of voluntarily surrendering the infant to a safe haven terminates parental rights or they provide for some type of notice to parents or require the department to conduct a reasonable search to locate the biological parents.
How Effective Are the New Laws?
Several states have begun to report on infants abandoned after the passage of the safe haven legislation. Approximately 33 babies have been legally relinquished including five in Michigan. Michigan reported nine attempts of the biological parent trying to regain custody of the abandoned child including one in which a judge ruled that the case was not a safe haven surrender because the parents had not been given enough information on their legal rights. Several states also reported on their public awareness campaigns, which they believe will be key to the effective implementation of the new laws. Michigan included a $200,000 appropriation to establish a toll-free information line and distribute press releases, a brochure and a poster targeting youth. Michigan also developed protocols and training material to be sent to entities that are designated to receive the infants.
Many officials see voluntary data collection about the mothers as a critical element in developing better policy to address the needs of women who abandon their babies. The information could include the mother’s medical history, race, length and condition of the pregnancy, any history of sexual or substance abuse, family situation, economic background, presence of domestic violence and information about the father. There is also a need to collect as much information as possible about the infant, including medical history, date of birth, preferred name for the child, sex, location of the birth and any problems encountered at birth.
Fire departments or police departments must do much more than simply taking the baby. The statutorily required responsibilities can be summarized as:
- Take the infant into temporary protective custody.
- Provide information to the person surrendering the newborn.
- Obtain medical history relevant to the newborn.
- Ask the surrendering parent to sign a voluntary release form.
- Arrange for transport of the newborn to a hospital.
- Transfer temporary protective custody of the newborn in the hospital.