Bills that would reduce or remove the threat of criminal prosecution against parents who leave their newborn infants safely in the hands of designated caregivers are a new trend in state legislation.
Born of a mixture of horror and compassion, such legislation is typically authored by lawmakers moved by stories of desperate parents abandoning or attempting to kill their infants by leaving them in unsafe places. Unofficial national estimates, based upon surveys of newspaper articles, place the number of abandoned infants at more than 100 per year.
Critics caution that the legislation is often little more than a feel-good measure and fear that, where passed, it could obstruct the search for deeper solutions to a troubling problem.
Texas currently is the only state to have taken steps to decriminalize abandonment in designated "safe places": hospitals, police departments and fire houses where emergency medical personnel may ensure that the child's health is not jeopardized. An Alabama clinic was the first to independently establish itself as a safe place in 1998.
The Texas law, passed last June and activated in September, authorizes hospital medical personnel to accept infants up to one month old from parents who voluntarily bring them to emergency facilities and relinquish care. The hospital must notify the state Department of Protective and Regulatory Services before the end of the following day, at which point DPRS assumes care of the infant as it would any other abandoned child.
Community-based programs such as the one in Alabama allow anonymity in order to remove the fears of parents who may otherwise consider more drastic alternatives. But in Texas, the family code and DPRS regulations require medical personnel to make "good faith efforts" to establish the parents' identity and the child's medical history, said Kingsberry Otto, the department's director of government relations.
Otto said no parents have turned their infants over to hospitals since the new law went into effect, despite the fact that officials in the Houston area reported thirteen cases of abandoned infants in the first eight months of 1999 alone.
Short of either permitting anonymity or extending absolute immunity, the Texas law merely offers parents an affirmative defense, obliging them to show that they acted lawfully if the state decides to prosecute.
"It doesn't keep you from being prosecuted. It just gives you a chance to make your argument." The burden of proof is not very strong because mothers who take precautions to ensure their baby's safety make sympathetic defendants, Otto said.
DPRS officials hope that information gathered from the parents may provide a reliable database from which more active and effective measures can proceed.
At least seven states California, Colorado, Georgia, Indiana, Kentucky, Minnesota and West Virginia -- are considering their own versions of the Texas law. But, unlike the Texas law, some of the proposed statutes would waive the state's right to prosecute as well as any effort to establish the parents' identity.
Child advocates and legal experts raise eyebrows about such open-ended measures.
"We would like to get more information and to come up with what we think may be a more structured response. There are so many unanswered questions as far as what is going on with the women that do this," said Joyce Johnson, a spokesperson for the Child Welfare League of America.
CWLA, the nation's largest child advocacy group, represents over 1,000 public and non-profit child-assistance agencies, including Harris County (Houston) Child Protective Services.
"In general, the idea of looking at legislation is good, but it's only a very tiny part of dealing with the problem," said Howard A. Davidson, director of the American Bar Association's Center on Children and the Law. Davidson said that safe place proposals too often do not dip beneath the surface of much deeper problems such as the social isolation and misinformation faced by young, economically disadvantaged parents.
Davidson also questions the wisdom of providing absolute immunity to abandoning parents, a step that could prevent appropriate action if, for example, the child was later found to be ill or injured or a family member wanted custody. "It would all depend on how the circumstances are defined in the law. If it was carefully crafted, I would expect prosecutors to go along with it," Davidson said.