THE ADOPTABILITY OF ABANDONED BABIES:
A Recent New York Case Interprets The State's "Baby Moses" Law

Within the last two years, thirty-five states have enacted safe haven laws designed to prevent mothers who give birth outside of hospitals from abandoning their babies in unsafe places like dumpsters or public restrooms in a moment of fear or panic. These are the so-called Baby Moses laws, named after the Bible Story in which an infant Moses is abandoned by his mother and set afloat in a reed basket down the Nile River before being rescued and raised by the Egyptian Pharaoh's daughter.

New York's Baby Moses law — the Abandoned Infant Protection Act — was interpreted for the first time last week by a family court judge in Matter of Olivia Doe. The case arose when a mother left her baby at Huntington Hospital on Long Island. The ruling raises some interesting questions about the mechanics of laws legalizing child abandonment, and the adoptability of the infants left behind.

The Purpose of Baby Moses Laws

Texas started a national trend when it enacted its Safe Haven Legislation in 1999. The act came about after a rash of baby abandonments. Thirteen babies were left in public places around the Houston area in a single year; four were found dead.

The string of abandonments had, in turn, followed a string of high-profile cases in which teen mothers gave birth to babies in hotel rooms or at the prom, leaving the babies to be later found dead. Amy Grossberg and Brian Petersen, an affluent New Jersey couple, were both sentenced to short prison terms in connection with their baby's death in one of the cases that fed a growing media frenzy.

The total number of such incidents is unknown, since neither state nor federal governments formally track such statistics. (Congress, however, passed a resolution in April 2000 encouraging states to keep statistics on abandoned babies, so this situation may change in the future.) An informal survey of major newspapers conducted by the U.S. Department of Health and Human Services found 105 reports of babies abandoned in public places in 1998, of whom 33 were found dead.

The idea behind the Texas law–and many of the state laws that followed in its wake–was to provide for "mothers in crisis" an alternative to abandoning their babies in some random public place. The laws thus reinvoke the image of old foundling hospitals, where mothers could push unwanted babies through a revolving window–ensuring they would be found and cared for, while protecting the mother's anonymity.

The ultimate goal of these laws is to protect babies by encouraging mothers to leave them in safe places, where they can receive necessary medical care and, ultimately, be placed with an adoptive family. Accordingly, mothers who do leave their babies in a designated safe haven receive immunity from prosecution for child neglect and abandonment.

Consistent with this purpose, the Baby Moses laws target only the relatively small number of babies delivered outside of hospitals, who are without access to medical care or other necessities. (In comparison to the 108 babies abandoned in public places, more than 31,000 babies were delivered and "abandoned" in hospitals in 1998 — that is, left without any arrangements for care.)

The Mechanics of Using Safe Havens

Although Baby Moses laws vary from state to state, they have some common features. Only very young infants can be left at safe havens. Depending on the state, infants must be younger than either 3 days, or 30 days. (North Dakota, unusually, permits abandonment of babies as old as one year). In addition, babies showing any signs of abuse or harm cannot be left at safe havens.

Designated safe havens include hospitals, and, in some states, fire, police, and ambulance stations–places where the newborn is likely to receive appropriate emergency medical care. Some states now require fire stations to stock newborn-care kits, which include umbilical clamps, to enable them to take in abandoned infants.

New York's law allows a baby to be left in any "suitable location" provided an "appropriate person" is promptly notified. Olivia Doe's mother complied with New York's requirements when she left her hours-old infant at a hospital designated by the county as a safe haven.

Mothers (and, depending on the state law, sometimes fathers or other individuals too) can leave babies at a safe haven without disclosing their own identity. Most laws specifically provide that they cannot be followed or pursued by anyone at the safe haven.

In some states, the person receiving such a baby — depending on the law — either can or must give the mother the opportunity to provide medical information on the baby and other family members. But no state requires that such information be disclosed in order for mothers to take advantage of the statute's safe haven.

Once a baby is left at a safe haven, the primary goal is to provide the infant with medical care, which many of them need desperately. Ultimately, the baby is turned over to the state's child welfare system, with an eye toward finding a foster or adoptive family for it. In the meantime, the mother — depending on the law — either is immune from prosecution for abandonment, or has an affirmative defense to raise against such a charge.

Parental Consent Is Not Available In Abandoned Infants' Adoptions

Although the ultimate goal of safe haven laws is to find a safe and suitable home for abandoned babies, most states have made no special provisions for their adoption.

Baby Moses laws are either silent about the procedures for the adoption of an abandoned baby, or they simply cross-reference the state's general provisions on the termination of parental rights and adoption. But the problem with resorting to the general law of parental rights and adoption is that this body of law is ill-suited to deal with certain aspects of abandoned baby cases.

Under this general law, for instance, one way babies become adoptable is by the consent of their biological parents. The mother's consent is always required. If the child is born within wedlock, the father's consent is required, too. The father's consent is also required if the child is born out of wedlock and he has met certain statutory conditions — for example, by filing an intent to claim paternity with the state's putative child registry, having paternity adjudicated, or living openly with the child's mother and/or the child.

In contrast, when a baby is abandoned anonymously, there is no way to obtain the sworn consent of the mother. Nor is there any way to notify the father that his consent is needed.

Parents Of Abandoned Infants Cannot Receive Notice of Rights Termination

The judge in the infant Olivia Doe's case noted that the safe haven law did not permit him to bypass any of the consent laws, but also saw that consent could not be obtained. Accordingly, he resorted to a proceeding to terminate parental rights.

Such a proceeding is an alternative way of making the baby "adoptable." But the court had no way of notifying the mother or father that it was undertaking this proceeding. The father might have had no right to notice because he did not meet any of the statutory conditions. But the mother, had she been able to be identified, would certainly have had such a right.

What then, could the court do to vindicate the mother's right to notice? The only thing the court had from the mother was an anonymous letter, sent to the Department of Social Services three days after the baby was abandoned. The letter stated that she intended to give the child up, and explained that her decision was reached after much thought and love.

Without a name to use, the court published notice of the termination proceeding, addressed to the attention of "Jane Doe." But of course, there is no reason to think the mother actually learned of the proceeding.

Indeed, whether such notice should even be required in light of the fact that it will almost always be futile is arguable. The court in this case likely required notice out of an excess of caution, believing that requiring notice to "Jane Doe" was the best that could be done to comply with an adoption law ill-fitted for the situation of abandoned babies.

The Presumption of Abandonment and Termination of Parental Rights

The request for termination of parental rights in the Olivia Doe case was predicated on the abandonment of the child–which is grounds for taking away parental rights in all states.

A child is deemed abandoned when the parent or parents show an intent to forego parental rights and obligations. That intent can be inferred from a parent's failure to visit, communicate with, or provide support for the child. The burden is on the parent to maintain contact.

For Olivia Doe's mother, the court erected a presumption of abandonment based on the fact that the mother placed the baby at a safe haven, and failed to make any contact with the agency or child for six months after termination proceedings were instituted, despite the published notice that the proceedings were occurring.

This presumption went unrebutted because the mother was not present at the proceeding. Accordingly, her parental rights were terminated and the baby was rendered "adoptable."

Other Legal Problems with Safe Haven Abandonments

Safe haven abandonments may pose other problems for adoption law as well. For one thing, many adoption laws have mandatory waiting periods and grace periods that conflict with the safe haven laws.

For example, Texas does not permit a mother to consent to the adoption of her newborn until 48 hours have passed from the birth. Giving time to think to a mother who is holding her child in her arms in the hospital, considering adoption, is the reason for the 48 hour period. Yet, since almost all babies are abandoned within the first two days, the abandoning mother is making a decision that is effectively irrevocable during that same period.

Many states also have general provisions designed to permit reunification between a parent and a previously abandoned child or to permit parents to revoke their consent to adoption with a specified period of time. But mothers who abandon their babies anonymously have no easy way to learn of the child's status or prove their maternity in time to appear and contest the adoption.

To deal with this problem, some states give the mother a bracelet that connects her to the abandoned infant, and can give her standing to appear in court. While the bracelet does not compromise her anonymity, it does allow her to drop that anonymity and identify herself later if she chooses.

Pros and Cons of Safe Haven Laws

Olivia Doe may have been served well by New York's safe haven law. She was left in a safe place by a mother who could not care for her, and ultimately freed for adoption by a loving family with whom she has been reportedly "doing well." And certainly every single baby who is spared the fate of being left in a dumpster represents an important victory.

But safe haven laws suffer from flaws common to laws passed in reaction to a few, high-profile cases: there was insufficient documentation of the abandonment problem beforehand and, thus, the laws do not target the problem as precisely as they might.

Indeed, there have been a series of newspaper articles in recent months questioning the effectiveness of safe haven laws. The numbers involved are too small to produce statistically significant conclusions. Yet simple before and after comparisons suggest they are largely ineffective.

In Houston, for example, there were nine babies abandoned in public places in the first four months after the safe haven law took effect. None was left in accordance with the statute.

Meanwhile, other states continue to find babies abandoned in public places. Moreover, perhaps even more tellingly, many have not had a single baby left at a designated safe haven. There does, however, appear to be some correlation between the amount of money spent advertising the law and its use. Houston received its first "safe haven" drop-offs only after a public official spent $200,000 of his own money to publicize the law.

As legislatures track the success of their safe haven laws, more attention might be devoted to figuring out why mothers leave their babies in unsafe places in the first place — and what can be done to fight the fear, denial or other motivations that may lead them to deliver outside of hospitals and then walk away. Only that inquiry will reveal whether safe havens can fix the problem.