In July 1999, following a few highly publicized cases of distraught parents abandoning their newborn babies, Texas enacted legislation providing for legal protection against prosecution for child abandonment if a parent (usually a mother) surrenders custody of her newborn to a designated EMS provider. Under public pressure to answer to the tragic, albeit rare, cases of newborn infants who are abandoned and sometimes left to die, legislators nationwide have turned to Texas's model. By August 2000, 13 states had enacted laws similar to Texas's. Lawmakers in almost 20 other states ushered similar legislation to near passage during the 1999-2000 legislative sessions.
These "safe surrender" or "infant abandonment" laws aim to save infants lives by designating a safe haven where distraught parents can anonymously relinquish their babies without risk of prosecution or interrogation. Generally, each law provides that a parent can surrender her infant to the custody of an emergency medical provider, police officer, firefighter, or other designated location where she will be asked few, if any, questions. Most laws protect the surrendering parent against prosecution and provide for the commencement of proceedings to terminate parental rights.
In general, we support the concept of safe surrender, but we have several words of caution. First, these laws provide an after-the-fact safety net, not a solution to the problems of unintended pregnancy or inability to care for a child. Virtually every case of infant abandonment signals that the health care and social service system has failed a woman and her baby, for surely a well-functioning system would enable a woman either to prevent unwanted pregnancy, to end it safely and early, or, if she decided to carry to term, either to keep her child or to place it, again safely and swiftly, for adoption. Moreover, it is not clear whether safe surrender laws will accomplish their purpose. No infants were surrendered under Texas's law until December 2000, 17 months after the law's enactment. And, since the law took effect, 13 infants in Texas have been illegally abandoned.
Based on our analysis of safe surrender legislation passed or proposed thus far, we have concluded that these laws generally do not directly affect reproductive rights. However, because safe surrender legislation addresses unplanned pregnancy, both supporters and opponents of reproductive choice may seek out your opinion on it. Accordingly, we provide a general overview of the laws, guidelines for analyzing them, and a list of key provisions that proposed legislation should include. Moreover, if nothing else, the wave of media and legislative attention focused on the abandonment issue provides a good context in which to lobby for more effective responses to unplanned pregnancy. For example, consider having your allies in the legislature offer amendments to the bills to improve sexuality education, increase funding for family planning, or expand adoption services.
It is also important to ensure that the bills do not present an overly simplistic, or even misguided, approach to a deeply sensitive and complex issue. At stake in the safe surrender context are the due process rights of the surrendering parent, the parental rights of both parents, and the rights of the surrendered infant. The safe surrender laws exist among myriad other state laws affecting these rights. In a comparative analysis of many of the safe surrender laws enacted to date, we have found tremendous variation in how comprehensively the laws address the intricacies of the rights and issues implicated.
We believe that to be both effective and mindful of the rights of the parties involved bills should include several key provisions:
- Adequate legal protection against prosecution. To encourage distraught parents to utilize safe surrender locations, the bill should guarantee immunity against prosecution for abandonment. Immunity protects the surrendering parent from being prosecuted at all for surrendering her child. An affirmative defense offers less protection; it permits the state to prosecute the surrendering parent under a state's child abandonment or other applicable law but allows the parent to raise her compliance with the safe surrender law as a defense in court. If legislation provides only for an affirmative defense against prosecution, or provides no explicit legal protection at all, the entire premise of safe surrender legislation is compromised.
- Due process in the termination of parental rights. If the bill authorizes the termination of parental rights, it should outline such proceedings in detail and should include the opportunity for parents to be present and heard.
- Protection of the surrendering parent's identity. To alleviate further the fear of legal recourse, the bill should ensure the anonymity of the surrendering parent. The surrendering parent may be asked or encouraged to offer her medical history insofar as it may be in the interest of the baby's health that his or her new guardians know this information, but such information should not be required as a condition of surrender. If the surrendering parent chooses to disclose information about herself at the time of surrender, such as name, medical history, or drug use, such information should be treated confidentially. Moreover, while safe surrender legislation should permit the non-surrendering parent to participate in custody and parental rights proceedings if that parent seeks to, legislation should not mandate efforts to locate the non-surrendering parent and ideally should affirmatively forbid such a search. Contrary to this admonition, Florida's safe surrender law requires that a "diligent" search be made for the non-surrendering parent. The search must include inquiries of all known relatives of the non-surrendering parent and of state, federal, and law enforcement agencies. Also, a notice including "available identifying information" must be posted in the county where the infant was surrendered. These requirements threaten the surrendering parent's confidentiality and possibly even her safety, and thereby also may deter use of the safe surrender option.
- Grace period for reclaiming the infant. The bill should provide a time frame during which a legally abandoned baby can be reclaimed by the surrendering parent. Such a provision is particularly crucial if the bill does not grant the surrendering parent the right to appear during custody or parental rights termination proceedings (as ideally it should). An opportunity to reclaim the infant protects a parent who makes the decision to abandon under desperate conditions but who quickly reconsiders or secures the resources and support necessary to provide for her baby. For example, Michigan's law provides for a 28-day period in which to petition the court for reunification. Parental rights are terminated automatically after 28 days if no petition is filed.
- Appropriate surrender location. Some legislatures have designated or considered designating so-called "crisis pregnancy centers" as drop-off sites for surrendering parents. These are centers that, under the guise of offering support for women with unplanned pregnancies, often aggressively impose an anti-choice agenda on unsuspecting women. Most of them provide no medical services and are wholly inappropriate as surrender locations for newborns. Instead, a bill should designate drop-off sites that are equipped to provide emergency medical care and are open 24 hours a day.
- Notification of legal rights and other important information. Upon surrendering custody of her baby, the surrendering parent should be provided with information about her legal and parental rights, any time frame in which to reclaim her baby, any hearings or court proceedings to follow, and contact numbers for further help or information. The bill should mandate that the state publish this information and distribute it to designated surrender locations.
- Screening for domestic violence. Ideally, safe surrender laws should require that staff at surrender locations be trained to screen the surrendering parent to assess whether she is in danger because of domestic violence. If she is, appropriate and immediate assistance should be made available.
- Public education about the safe surrender option. To be effective, a safe surrender proposal should provide for a public education campaign about the safe surrender option. The initial absence of a public education campaign in Texas may have contributed to the Texas law's failure to achieve its intended goals in the year following its enactment. No infants were surrendered under the Texas law until private citizens and state officials launched a public education campaign during the summer and fall of 2000, a full year following the law's enactment.
- More effective responses to the problem of unplanned pregnancy. Legislatures should not adopt safe surrender laws in a context devoid of serious discussion about how to reduce and address unplanned pregnancies. You should remind lawmakers about the far more effective responses to the problem and ideally have legislative allies propose amendments to implement these responses, including increased funding for and access to family planning services, comprehensive sexuality education, and expanded adoption services.
This checklist does not address all of the important issues that may be raised by safe surrender legislation. You may want to bring other questions to the attention of a criminal law or family law expert, social worker, and/or children's rights advocate in your state. For example, is there a limitation on the maximum age of an infant who can be legally abandoned and, if so, is that limitation appropriate? Is it clear what governmental agency takes immediate custody of the baby and, if so, is the appropriate agency specified? Does the bill mandate DNA testing to establish paternity or maternity (e.g., of the surrendering parent, or of the non-surrendering parent at a subsequent custody hearing)? Local experts are better equipped to both answer these questions and assess how any particular proposal meshes with existing state laws and policies touching upon the issues of abandonment, custody, parental rights, and criminal prosecution.
January 18, 2001