Friday, November 14, 2008

FAQ on Nebraska Safe Haven Law

At last count 34 children have been left at Nebraska hospitals under the state's safe haven law.  While the legislature is meeting in special session today to amend the law to put an age limit in place, family law professors are likely facing a number of questions by students about the law.   Here's a quick crib sheet with links to references.  (all sites last visited November 14, 2008 bgf)

Q.  What is this law and do other states have it? 

A.  According to the National Safe Haven Alliance :"Safe Haven laws have been passed in all 50 states since 1999. At that time a movement arose to combat increasing cases of infant abandonments across the U.S. In many cases these infants would perish from exposure to the elements, starvation or dehydration. Safe Haven laws were created to allow an adult to anonymously relinquish a baby into the hands of a responsible adult, in most cases at hospitals, police stations or fire stations, without fear of reprisal or prosecution." 

Q.  What children are being reliquished under these laws?

The difference between the Nebraska law and these other laws is all other states have an age limit - ranging from 3 days to 1 year old.  See The National Center of States Courts Safe Haven Legislation Chart (2003).  In the first two months of the Nebraska law, the majority of children abandoned were teenagers, 90% of whome were previously involved in some type of mental health services and over half of which were at one time, or currently are wards of the state. See more statistics about the children from this report from Nebraska station KOLN/KGIN's website.

Q. Why were these laws passed?

A. The laws were passed to prevent newborns from being killed or abandoned in unsafe conditions.  "The advocates of these laws believe that lives will be saved, crimes will be prevented from occurring, and more infants will be available for adoption. Others have argued that these laws may not work, because the women who commit neonaticide often deny or conceal that they are pregnant, and do not arrange for the birthing process or for the care of the child after the birth. [Other researchers] have argued that women who commit neonaticide usually do so in a state of panic and fear, so it is unlikely that they will be sufficiently calm to consider dropping off their newborn in a designated safe place. National Abandoned Infants Assistance Resource Center, Discarded Infants and Neonaticide: A Review of the Literature 9 (2004)(citations omitted)

Q. What happens to the parents who have abandoned their children under these laws?

A.  All safe haven laws provide some form of anonymity for the relinquishing parent and so no authorities make no attempt to identify or locate that person, though some states do allow authorities to ask for medical information from the relinquishing parent.  Most states do require verification that the infant has not been reported as a missing child, and some states require a public notice or a search for the non-relinquishing parent (nearly always the father).  All safe haven laws also provide some form of defense or immunity from criminal prosecution. 

Q.  What is a parent's rights or responsibilities if they have relinquished a child under these laws?

A.  Generally, the parent is presumed to have abandoned the child.  Abandonment is a basis for termination of parental rights. National Abandoned Infants Assistance Resource Center, Expediting Permanency for Abandoned Infants 7 (UC Berkeley 2007).  The Nebraska law is particularly vague on the impact of a parent's abandonment under the safe haven law -- apart from providing for immunity from criminal prosecution, it's simply unclear what happens next to these children.  Read more about the problem in this Wall Street Journal article.

http://lawprofessors.typepad.com/family_law/2008/11/nebraska-safe-h.html

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