By: Alexandra Schrader-Dobris*

 

In the wake of Dobbs v. Jackson Women’s Health Organization, infant safe haven laws are put to the test as more women give birth because of decreased abortion access.^[1] During the Dobbs oral argument Justice Barrett asked whether safe haven laws were sufficient alternatives to abortion.^[2] The laws allow parents to anonymously give up their children in designated areas such as fire stations or hospitals.^[3] Once the babies are dropped off, they are supposed to receive medical care and are provided for until they are placed in a permanent home.^[4] States enact the laws to prevent infant abandonment and infanticide.^[5] Women will not face legal charges for abandonment unless there are signs of abuse or neglect.^[6] Despite the legislative promise that the safe haven laws will increase child safety and legal compliance, the efficacy is suspect as the laws do not appear to protect mothers or their babies.^[7]

 

Risk to Mother’s Safety and Wellbeing

First, there is insufficient research to suggest that the laws serve their intended purpose: which is to decrease infanticide and increase the health and safety of pregnant mothers.^[8] Infanticide, the act of a parent killing a baby, is most common among very young women who are detached from their families, single, “emotionally immature” and in “denial,” about their pregnancies.^[9] Since safe haven laws emphasize anonymity, it is difficult for researchers to collect data on the demographics of those taking advantage of the laws.^[10] Therefore, the frightened teenage girl who planned to throw her baby in a dumpster is not necessarily more likely to follow a safe haven law.^[11] If the targeted group is not using the laws then the laws have severe limited utility.

Second, safe haven laws do not protect women during their pregnancy.^[12] Women who give up their children via these laws do not have access to healthcare during the pregnancy, nor do they receive mental health or domestic violence counseling, or financial support.^[13] Finally, under safe haven laws if the parent changes their mind, they often have a very short time frame to reconnect with the child they gave up.^[14] By contrast, pregnant women who go through the adoption process have to sign contracts and consent forms, providing them more opportunities to choose to keep their babies or have lifelong relationships with them via an open adoption. Legislatures design safe haven laws so that mothers can give up their children quickly and anonymously, which gives them less time to decide whether they want any more involvement in their children’s lives. For example, in California “A parent or person with lawful custody has up to 14 days from the time of surrender to reclaim their baby.”^[15] This reclamation time period contrasts sharply with the nine or more months a pregnant woman has to decide in the case of adoption.

 

Risk to Child Safety and Wellbeing

Children are also at a severe disadvantage under safe haven laws.^[16] Unlike the traditional adoption process, new parents are much more likely not to know anything about their baby’s medical history which makes it more difficult for parents to provide adequate healthcare for their children.^[17] Although it is sometimes optional, many states do not require the parent giving up a child to provide family and medical history information.^[18] This lack of knowledge is of particular consequence for new parents because abandoned babies are especially at risk to have medical complications in their first year of life.^[19] Moreover, most abandoned children will not know their racial or ethnic origins and thus they will miss a potentially significant piece of their identity.^[20] In addition, children given up through safe haven laws are more likely to spend extended time in the foster care system than children who are adopted.^[21] While planning for permanent child placement begins during pregnancy for a woman who intends to use adoption services, in abandonment cases planning for placement does not occur until the child is born.^[22]

 

Baby Boxes

Baby boxes are the newest controversial addition to the safe haven laws.^[23] Boxes can be found in designated safe haven sites that allow for anonymous drop off.^[24] The box locks after a person places the baby inside.^[25] The boxes have padding and controlled temperature settings.^[26] Once the baby is inside the box, within a span of 30 seconds a silent alarm will trigger, notifying staff at the facility.^[27] Indiana was the first state to install baby boxes in 2016.^[28] The boxes are designed so that the increased anonymity encourages women who are planning to give up their children to do so legally. However, this factor also makes it even more difficult for pregnant women to change their minds or at least consider connecting with their children later in life. Without interacting with a hospital worker or firefighter, there is no chance for medical personnel to assess the mother’s mental or psychological health or assure her that her baby is in safe hands. Although those practices might not happen during a person to person handoff, the baby box completely eliminates that possibility.

Furthermore, baby boxes are expensive and require regular maintenance.^[29] The boxes initially cost anywhere between $10,000 to $16,000 in addition to yearly maintenance and inspection fees.^[30] Although data is sparse and inconsistent, according to one source, as of April 11, 2023, 145 boxes have been installed since their inception in 2016,^[31] 105 of which were in Indiana.^[32] As of September 28, 2023, 37 babies across the nation were given up in the boxes.^[33] Is that enough use to justify the cost? Even though the baby boxes are outfitted with video cameras, there has been debate concerning the interpretation of some safe haven laws about whether the laws require a person to constantly monitor the box.^[34] Monitoring the boxes adds an extra responsibility to fire and police stations who may not have employees to spare for this important duty.^[35]

Other people express ethical concerns, worrying that putting a baby in a box is immoral and unsafe.^[36] The maker of the baby boxes claims her company did safety tests, however, the boxes are not currently FDA approved and she has not publicly disclosed her research methods.^[37]

 

Conclusion

Although some studies show that safe haven laws increase the number of legal abandonments, under the laws in several states infants cannot be surrendered unless they are 72 hours old or younger.^[38] Thus, the data does not account for the number of babies given up outside that age range. A Texas survey found that from 1996-2006 babies were legally abandoned at the same rate as they were illegally.^[39] Even though this study indicates that the safe haven laws are ineffective, the lack of up to date standardized reporting on a national scale and the anonymous nature of abandonment makes data collection difficult.^[40] It is nearly impossible to determine how many infants’ lives would have been saved without the safe haven laws.^[41] Instead of decreasing child abandonment, safe haven laws may have the unintended consequence of decreasing the number of adoptions, which are safer and healthier for the mother and child.^[42] Whether people lack knowledge of safe haven laws or do not take advantage of the laws because they fail to satisfy their needs, something must be done. Proponents of safe haven laws may argue that saving one life is better than saving none,^[43] however, this is a low standard for mother and child safety. Legislators should do more research to better meet the reproductive health concerns of our nation and end reckless child abandonment.

 

*Alexandra Schrader-Dobris is a Note and Comment Editor for JLI Vol. 42.

 

[1] Melissa Jeltsen, We Are Not Prepared for the Coming Surge of Babies, The Atlantic, Dec. 16, 2022, https://www.theatlantic.com/family/archive/2022/12/abortion-post-roe-rise-in-births-baby-care/672479/.

[2] Patti Waldmeir, Turmoil over US abortions turns spotlight on safe havens for newborns,

Financial Times, Aug. 7, 2023, https://www.ft.com/content/9d561590-f410-4ee5-a02e-d509c9950a90.

[3] Id.

[4] Id.

[5] Child Welfare Information Gateway, Infant Safe Haven Laws: Summary of State Laws, July 2007, at 1, https://www.childwelfare.gov/pubPDFs/safehaven.pdf [https://perma.cc/A4EW-EGPZ].

[6] Id.

[7] Elizabeth Tobin-Tyler, Putting Your Money Where Your Mouth Is: Maternal Health Policy after Dobbs, 53 Seton HALL L. REV. 1577, 1590 (2023).

[8] Jennifer R. Racine, A Dangerous Place for Society And Its Troubled Young Women: A Call For An End To Newborn Safe Haven Laws In Wisconsin And Beyond, 20 Wis. Women’s L.J., 243, 258 (2005).

[9] Id.

[10] Id.

[11] Susan Ayres, Kairos and Safe Havens: The Timing and Calamity of Unwanted Birth, 15 Wm. & Mary J. Women & L., 227, 234 (2009), https://scholarship.law.wm.edu/wmjowl/vol15/iss2/2.

[12] Naomi Cahn & June Carbone, The Blue Family Constitution, 35 J. AM. ACAD. MATRIMONIAL LAW. 505 (2023).

[13] Racine, supra note 8.

[14] California Department of Social Services, Safely Surrendered Baby Program, (2023) https://www.cdss.ca.gov/safe-surrender-baby#:~:text=Under%20the%20Safely%20Surrendered%20Baby,within%2072%20hours%20of%20birth.

[15] Id.

[16] Orliss M, Rogers K, Rao S, Deavenport-Saman A, Imagawa KK, Roberts S, Rafeedie J, Hudson SM., Safely surrendered infants in Los Angeles County: A medically vulnerable population, 45 Child Care Health Dev. 861 (July 19, 2019).

[17] Micah Orliss, Adoptive parents often in the dark about care for ‘safe haven’ kids, (July 20, 2022) https://www.statnews.com/2022/07/20/adoptive-parents-in-the-dark-care-safe-haven-children/.

[18] Child Welfare Information Gateway, Infant Safe Haven Laws, Sept. 2021, at 3, https://www.childwelfare.gov/pubpdfs/safehaven.pdf.

[19] Orliss, supra note 16.

[20] Carol Sanger, Infant Safe Haven Laws: Legislating in the Culture of Life, 106 COLUM. L. REV. 753, 791 (2006).

[21] Mary Wiltenburg, Safe Haven, Christian Sci. Monitor, July 24, 2003, at 14.

[22] Id.

[23] Child Welfare, supra note 18.  

[24] STOP BABY BOXES NOW!, FAQ: Safe Haven Movement, Baby Boxes, and Laws,

https://stopshbbnow.org/faqs/frequently-asked-questions-safe-haven-baby-boxes-laws/.

[25] Id. 

[26] Lizzie Widdicombe, The Baby-Box Lady of America, The New Yorker, (Dec. 18, 2021) https://www.newyorker.com/news/news-desk/the-baby-box-lady-of-america.

[27] Id.

[28] Kolby Brock, “A Study of Safe Haven Baby Laws in the United States: One Life Saved or Too Many Unknowns to Evaluate?” Honors Projects 3, 20 (2023), https://digitalcommons.owu.edu/honors/6.

[29] Lizzie Widdicombe, The Baby-Box Lady of America, The New Yorker, (Dec. 18, 2021) https://www.newyorker.com/news/news-desk/the-baby-box-lady-of-america.; Taylor Hernandez, Legislative battle over ‘baby boxes’ in Florida, WPBF,

(Apr. 12, 2023),  https://www.wpbf.com/article/baby-boxes-florida-politics/43581502.

[30] Taylor Hernandez, Legislative battle over ‘baby boxes’ in Florida.

[31] Terry Spencer, Florida Fight over ‘baby boxes’ part of bigger culture war, AP News,

(Apr. 11, 2023), https://apnews.com/article/baby-boxes-florida-7a6dd3598f9c8a37be5c913572abdd62.

[32] STOP BABY BOXES NOW!, supra note 24.

[33] Id.

[34] Daniel Griffin, Central Ohio’s safe haven ‘baby box’ closed, NBC, (Jan. 9, 2023).

https://www.nbc4i.com/news/local-news/sunbury/central-ohios-only-safe-haven-baby-box-removed/.

[35] Id.

[36] Spencer, supra note 31.

[37] Alyssa Ivanson, DCS director: Baby box lawsuit a possibility, Nexstar Media Group, Inc., (July 15, 2016).https://www.wane.com/news/dcs-director-baby-box-lawsuit-a-possibility/#:~:text=(WANE)%20%E2%80%93%20In%20letters%20to,may%20be%20the%20next%20step; Brian Bouchard, UMFK Student Aims to Bring Safe Haven Boxes to Aroostook County, WAGM-TV, (Jan. 5, 2023), https://www.wagmtv.com/2023/01/05/umfk-student-aims-bring-safe-haven-boxes-aroostook-county/.

[38] Lark Lewis, Safe Haven Laws, Find Law, (Aug. 31, 2023), https://www.findlaw.com/family/adoption/safe-haven-laws.html.

[39] Sandi L. Pruitt, The Number of Illegally Abandoned and Legally Surrendered Newborns in the State of Texas, Estimated From News Stories, 1996-2006, 13 Child Maltreatment 89 (Feb. 2008).

[40] Kolby, supra note 28 at 15–18.

[41] Id.

[42] Evan B. Donaldson Adoption Inst., Unintended Consequences: ‘Safe Haven’ Laws are Causing Problems, Not Solving Them 2-3 (2003).

[43] Debbe Magnusen, From Dumpster to Delivery Room: Does Legalizing Baby Abandonment Really Solve the Problem?, 22 J. Juv. L. 1, 10 (2001–02).