BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1048
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          Date of Hearing:   April 21, 2009

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                   AB 1048 (Torrico) - As Amended:  March 31, 2009
           
          SUBJECT  :   Child Protection: Safe Surrender

           KEY ISSUES  : 

          1)Should the time frame for permitting the surrender of newborn  
            children to designated "safe-surrender" sites be increased  
            from 72 hours to 30 days?

          2)Should a local fire agency, with approval from a local  
            governing body, be permitted to designate a safe-surrender  
            site?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.  


                                      SYNOPSIS 
                                          
          Under existing law, established in 2000 by SB 1368 (Brulte), a  
          parent or other person with lawful custody of a baby 72 hours  
          old or younger may surrender the newborn to a designated  
          safe-surrender site without fear of criminal prosecution for  
          child abandonment.  Designated safe-surrender sites include a  
          private or public hospital or any other location designated by a  
          county board of supervisors.  This bill would expand the scope  
          of existing law in three ways: (1) it would increase the amount  
          of time in which a parent or other person with custody could  
          surrender the child after its birth from 72 hours to 30 days;  
          (2) it would permit a fire agency, with the approval of the  
          local governing body, to designate a fire station as a  
          safe-surrender site; and (3) it would designate the funding  
          stream for the safe-surrender program.   

          This bill is very similar to AB 81 and AB 2262 carried by the  
          author last session to increase participation in the state's  
          child-saving "safe-surrender" program and to save more children.  
           The Governor vetoed those measures, stating in part, "Experts  
          have raised concerns that instead of improving child safety,  
          increasing the time that a baby may be surrendered from 72 hours  
          will put newborns in greater risk by keeping them in an unsafe  








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          environment without proper care and supervision."  The author  
          and his many supporters continue to believe that this is not the  
          case, and hope to demonstrate this year to the Governor's  
          satisfaction that, to the contrary, expanding the time period  
          that a baby may be surrendered from 72 hours to 30 days, coupled  
          with appropriate public education efforts, will save more  
          children's lives.  Opponents, many of whom support the current  
          safe-surrender law, contend that there is no evidence to support  
          extending the time frame to 30 days.  Many of the opponents  
          support increased funding to better publicize a law that they  
          believe is already effective, but they claim that extending the  
          time frame, instead of saving lives, will only permit persons to  
          circumvent established child protection and adoption procedures  
          and inadvertently create other unwanted consequences.


           SUMMARY  :  Expands the scope of the existing "safe-surrender" law  
          that allows persons to surrender newborn children to a  
          designated safe-surrender site without fear of criminal  
          prosecution.  Specifically,  this bill  :  

          1)Increases the time period in which a person may surrender an  
            infant under the provisions of the "safe-surrender" law from  
            72 hours after the child's birth to 30 days.

          2)Permits a local fire agency, upon approval of the appropriate  
            local governing body, to designate a safe-surrender site.   
            Before designating a location as a safe-surrender site, the  
            designatory entity shall consult with the governing body of a  
            city, if the site is within the city limits, and with  
            representatives of a fire department and a child welfare  
            agency that may provide services to a child who is surrendered  
            at the site, if that location is selected.

          3)Limits, under certain circumstances, the liability of the  
            safe-surrender site and its personnel in relation to accepting  
            and caring for the surrendered child and the time prior to  
            when the site or its personnel knew, or should have known,  
            that the child had been surrendered.

          4)Provides that funding be available through the State  
            Children's Trust Fund and the California Children and Families  
            Trust Fund.  Provides that the Department of Social Services  
            (DSS) shall apply to the California Children and Families  
            Commission for funding and that General Fund moneys shall not  








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            be used to fund this bill.  DSS may also accept and expend  
            private donations that are received by the department for the  
            purposes of this bill. 

          5)Requires DSS, on or before January 1, 2013, contingent upon  
            availability of sufficient funding or resources for this  
            purpose, and on or before January 1 of each subsequent year,  
            to report to the Legislature on the effect of this act.

          6)Requires DSS, on or before July 1, 2010, to convene a  
            "workgroup" whose purpose is to determine which agencies  
            should provide updated instructions to counties as to  
            safe-surrender sites, and to determine which agencies should  
            create rules and regulations for those updates.

           EXISTING LAW  :

          1)Makes it a crime for a parent of, or other person entrusted  
            with, a child younger than 14 years of age to abandon the  
            child (Penal Code Section 271) and to fail to provide for the  
            child or to present the child to an orphanage or similar  
            institution as an orphan.  (Penal Code Section 271(a).)

          2)Makes it a crime for a parent willfully to fail, without  
            lawful excuse, to provide a child with necessary food,  
            clothing, shelter, medical assistance or other remedial care.   
            (Penal Code Section 270.)

          3)Makes it a crime for a parent who refuses, without lawful  
            excuse, to accept his or her minor child into the parent's  
            home, or, failing to do so, to provide alternative shelter,  
            upon being requested to do so by a child protective agency and  
            after being informed of the duty imposed by this statute to do  
            so.  (Penal Code Section 270.5.)

          4)Describes the procedure for the surrender of a child 72 hours  
            or younger to a safe-surrender site without incurring any  
            criminal liability under the state's child abandonment laws.   
            (Health and Safety Code Section 1255.7.)

          5)Defines a "safe-surrender site" as either:

             a)   A location designated by the board of supervisors of a  
               county to be responsible for accepting physical custody of  
               minor who is 72 hours old or younger.  (Health and Safety  








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               Code 1255.7(a)(1)(A).); or,

             b)   A location within a public or private hospital  
               designated by the hospital as responsible for accepting a  
               minor child who is 72 hours old or younger.  (Health and  
               Safety Code 155.7(a)(1)(B).)

          6)Defines a "parent" as a birth parent of a minor child who is  
            72 hours old or younger.  (Health and Safety Code  
            155.7(a)(2).)

          7)Protects from prosecution under California's child abandonment  
            laws a parent or other person having lawful custody of a child  
            72 hours old or younger who voluntarily surrenders physical  
            custody of the child to personnel on duty at a safe-surrender  
            site.  (Penal Code Section 271.5.)

          8)Provides that a child is within the jurisdiction of the  
            juvenile court if:
           
             a)   The child has been left without any provision for  
               support;

             b)   The child has been safely surrendered and the child was  
               not been reclaimed within the 14-day period, as specified;

             c)   The child's parent has been incarcerated or  
               institutionalized and cannot arrange for the care of the  
               child; or, a relative or other adult custodian with whom  
               the child resides or has been left is unwilling or unable  
               to provide care or support for the child, the whereabouts  
               of the parent are unknown, and reasonable efforts to locate  
               the parent have been unsuccessful.  (Welfare and  
               Institutions Code Section 300(g).)

           COMMENTS  :  Under existing law, established in 2000 by SB 1368  
          (Brulte), a parent or other person with lawful custody of a baby  
          72 hours old or younger may surrender the newborn to a  
          designated safe-surrender site without fear of criminal  
          prosecution for child abandonment.  Designated safe-surrender  
          sites include a private or public hospital or any other location  
          designated by a county board of supervisors.  Forty-seven states  
          have enacted similar legislation since Texas adopted the first  
          "safe haven" law in 1999.  Other state laws vary in their  
          particulars, but all were prompted by well-publicized reports of  








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          mostly young mothers abandoning newborns in dumpsters,  
          alleyways, or public restrooms.  Safe haven laws seek to avoid  
          such tragic outcomes by permitting the parent of a newborn to  
          anonymously surrender the child to a safe-surrender site, where  
          the infant will receive shelter, sustenance, and medical care  
          instead of being exposed to the elements and possibly dying.
           
          This bill is very similar to AB 81 and AB 2262 carried by the  
          author last session, with the goal of increasing participation  
          in the state's "safe-surrender" program and therefore saving  
          more children.  Although these bills received broad bipartisan  
          support, the Governor vetoed both measures (veto message  
          contained below), stating in part, "Experts have raised concerns  
          that instead of improving child safety, increasing the time that  
          a baby may be surrendered from 72 hours will put newborns in  
          greater risk by keeping them in an unsafe environment without  
          proper care and supervision."  The author and his many  
          supporters continue to believe that this is not the case, and  
          hope to demonstrate this year to the Governor's satisfaction  
          that, to the contrary, expanding the time period that a baby may  
          be surrendered from 72 hours to 30 days, coupled with  
          appropriate public education efforts, will save more children's  
          lives.  The Los Angeles County Board of Supervisors previously  
          opposed similar measures, stating its belief that the 72-hour  
          age limitation contained in current law strikes the proper  
          balance, and the time period should not be expanded.

          This bill, among other things, seeks to expand the scope of  
          existing law most substantively by expanding the time period in  
          which a parent or other person may surrender a child from 3 days  
          to 30 days.  In support of this increase, the author states:

               As of June 2008, 251 babies have been safely surrendered in  
               California. Unfortunately, public awareness of the law has  
               been insufficient.  The California State Auditor released a  
               report in April 2008 on the Safely Surrendered Baby Law.   
               The audit reported that over 400 babies have been found  
               illegally abandoned in California.  Further, the audit  
               found that funding for the program, public awareness, and  
               the information provided to counties about the program were  
               insufficient.
                
               Currently, 33 states have Safe Surrender provisions that  
               allow at least seven days for desperate and unprepared  
               parents to relinquish their parental rights for newborns.   








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               North Dakota and Missouri have gone so far as to allow a  
               parent up to one year without the threat of prosecution for  
               child abandonment provided that the child is left with a  
               health care provider.  Several of the remaining states are  
               also considering the expansion of their own safe surrender  
               provisions beyond 72 hours.

               Despite the protection of anonymity and confidentiality  
               that the current law provides, the stringent 72-hour  
               provision fails to account for factors such as postpartum  
               depression, language and geographic barriers and the lack  
               of public awareness.  These factors may prevent parents  
               from making a coherent and informed decision on such a  
               crucial matter.

          According to the author and supporters, this bill expands the  
          scope of a life-saving law.  They contend that the current law  
          has saved lives and that extending the surrender period will  
          save even more.  The author points out that of the 47 states  
          that have safe-surrender laws, 22 have surrender periods of 30  
          days or longer.  

          The author also points to a study conducted by the Centers for  
          Disease Control, which found that the second highest peak in  
          risk for infant homicide occurs during the eighth week of life.   
          However, the relevance of this study is not entirely clear,  
          since this bill would only extend the period to 30 days, or just  
          over four weeks.  Moreover, infant homicide is not the same as  
          child abandonment, and the psychological state that prompts a  
          parent to kill a child is not necessarily the same as the state  
          that causes a parent to abandon a child.  Interestingly, the  
          opponents of a previous similar bill cite this same study, since  
          it shows that the greatest risk of infant homicide (83%) is  
          during the first 24 hours. 

          The author provides evidence that babies older than 72 hours  
          continue to be abandoned.  In 2008, the State Auditor found that  
          404 babies (one year old or younger) had actually been abandoned  
          since the inception of the law, though the DSS only reported 175  
          abandoned babies.  The author states that the DSS's numbers were  
          much lower because it only reported on abandoned babies 7 days  
          old or younger.  Moreover, the report found that over 25% of the  
          abandoned babies had been over 3 days (72 hours) old.  (Bureau  
          of the State Audits, Safely Surrendered Baby Law, April 2008  
          Report 2007-124, pp. 10, 59.)  The author argues, based on these  








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          data, that a significant number of children could have been  
          safely surrendered if the surrender period had been longer than  
          72 hours.

          The author also reports that shortly after the Auditor's report  
          was released, at least two babies were abandoned.  One of the  
          babies was a 9-day-old baby abandoned on the track of a  
          Vacaville school.  The mother left the baby within a half-mile  
          of a fire station and a hospital, both designated safe-surrender  
          sites.  The baby was too old to be safely surrendered and the  
          mother had suffered a psychotic breakdown.

          Supporters of the 30-day surrender period do not rely solely  
          upon a statistical argument, however.  They also argue that if  
          extending the time frame saves even one life, then it is  
          worthwhile.  For example, the American College of Obstetricians  
          and Gynecologists previously conceded that expanding the  
          surrender period "may not significantly increase the numbers of  
          newborns protected under this program, but if even a few lives  
          can be saved, we think the program expansion appropriate."  Even  
          if extending the time frame will create some of the problems  
          that opponents fear, the author contends, those problems are  
          easily outweighed by the value of saving a human life.

          Professor Michelle Oberman, of Santa Clara University School of  
          Law, has written extensively on the subject of mothers who kill  
          their infants.  She acknowledges the general lack of evidence on  
          this subject but points out that, on the other hand, "there is  
          no credible reason to believe that this expansion of the law  
          will increase the risk of babies being abused," as was claimed  
          by the Governor in his veto message.  In short, the lack of  
          evidence cuts both ways.  Oberman points out that expanding the  
          surrender time will at the very least provide "a positive  
          alternative to the desperation that likely informs the impulsive  
          decision-making of young women contemplating abandoning their  
          newborns."  Professor Oberman concludes that "there is, however,  
          far more to be gained than there is to be lost by this  
          particular expansion of the safe surrender law."  

           Legislative Intent and History Behind the Safe-Surrender Law  :   
          The safe-surrender law was enacted by SB 1368 (Brulte), Chapter  
          824, Statutes of 2000.  The intent was to provide a mother of an  
          unwanted newborn with a safe alternative to abandonment of the  
          child in trash bins, alleys, or other places where the baby  
          would be unprotected and could die.  SB 1368 was spurred by a  








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          group that retrieved dead abandoned babies from county morgues  
          and buried them in a specially designated cemetery.

          In order to reduce the number of abandoned babies left to die  
          and give them a chance to survive, SB 1368 provided a safe place  
          (such as an emergency room of a hospital) where a person could  
          "safely" surrender the baby; and, if there were a change of  
          heart, that person could retrieve the baby within a specified  
          time.  SB 1368 also provided immunity from criminal prosecution  
          for violation of the child abandonment laws to the person who  
          safely surrendered the newborn.  

          Under California's existing law, a person may surrender an  
          infant to a designated "safe-surrender" site, either a hospital  
          or some other designated site such as a fire station.  Research  
          shows that young women who abandon their newborns do so because  
          they hope to keep the birth a secret.  Existing law therefore  
          permits a person to surrender the infant with complete  
          anonymity.  The surrendering party is asked to voluntarily fill  
          out a medical questionnaire, but otherwise no questions are  
          asked.  A bracelet attached to both the newborn and the  
          surrendering party permits a parent to reclaim the child within  
          14 days, so long as relinquishing the child to the parent would  
          not endanger the child.  Within 48 hours of taking custody of  
          the child, the safe-surrender site must notify the relevant  
          child protection agency, which in turn begins the process of  
          making the child a dependent of the court and setting the stage  
          for foster care or adoption. 

           Existing Research on the Current Surrender Period  :  As reported  
          by the Assembly Public Safety Committee in 2008, the Emergency  
          Pediatric Care Journal found in 2003 that "newborns are at the  
          greatest risk of homicide during the first day of life; this  
          time-frame constitutes 83% of all infants killed."  Supporting  
          this data, a 2002 Centers for Disease Control study conducted on  
          infant death data from 1989 to 1998 also found that infants are  
          at the greatest risk for homicide during the first week of  
          infancy and the first day of life.  In addition, the study  
          established that the homicide rate on the first day of life was  
          more than 10 times greater than the rate during any other time  
          of life.

           ARGUMENTS IN OPPOSITION  :  Opponents of the author's previous  
          efforts can be separated into two categories: those who support  
          the safe-surrender law, but oppose the 30-day surrender period;  








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          and those who oppose the bill because they oppose the  
          safe-surrender concept in general.  

           Safe-Surrender Law Supporters Who Opposed the Author's Previous  
          Bills  :  A number of law enforcement and social service agencies  
          strongly support the safe-surrender law and are only opposed to  
          extending the surrender period to 30 days.  Opponents claim that  
          the original law was meant to address particular situations in  
          which newborns are at greatest risk of abandonment.  Expanding  
          the bill to 30 days, opponents claim, does nothing to address  
          those particular risks and will only create a number of  
          unintended and unwanted consequences, some of which may even put  
          children at greater risk. 

          The County Welfare Directors Association of California (CWDA)  
          previously claimed that the 30-day provision cannot be justified  
          by research on child abandonment, is inconsistent with the  
          policy of anonymity, and circumvents well-considered child  
          protection and relinquishment policies.  CWDA pointed out that  
          existing research clearly distinguishes between women who kill  
          or abandon babies shortly after birth and those who endanger  
          their babies later on.  Research shows that mothers who kill or  
          abandon newborns do so within the first 24 hours because they  
          are in a severe state of denial about their pregnancy and/or  
          have managed to keep their pregnancy a secret.  Without a  
          safe-surrender site that maintains their anonymity and protects  
          their secret, young women in such a situation are likely to  
          abandon a baby in an unsafe place.  This is why the anonymity  
          guaranteed by the safe surrender is so essential. 

          CWDA claims that women who kill their babies after this initial  
          period do so for quite different reasons:  They may suffer from  
          post-partum depression or mental illness, or perhaps they are  
          motivated by a misguided belief that the child will be better  
          off dead or that God is commanding them to kill their child.   
          Clearly these women need help, but CWDA contends that  
          safe-surrender sites will not help them or their children.  CWDA  
          contends that women who have cared for their children for up to  
          30 days have probably not been able to keep this a secret from  
          family and friends.  They would not benefit, therefore, from the  
          anonymity of a safe-surrender site.  Of course, it is possible  
          that after the three-day period some women (or men for that  
          matter) may feel so overwhelmed that they feel that they can no  
          longer safely or adequately care for their child.  However, CWDA  
          points out that there are already existing methods for dealing  








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          with this situation, such as "crisis nurseries" or lawful  
          relinquishment.  For example, existing voluntary relinquishment  
          laws enable a parent to surrender a child to county child  
          welfare agency and to place a child in foster care for up to six  
          months.  According to CWDA, these options not only remove the  
          child from potential danger but also provide counseling, and  
                                                         opportunity to gather critically needed medical information, and  
          better security for the rights of birthparents.  This process is  
          also better for children, who in the safe-surrender context  
          might be denied information about their parental and medical  
          history. 

          CWDA does not entirely oppose revisiting California's 72-hour  
          safe-surrender limit, suggesting instead that a law extending  
          the safe surrender period to 7 days would reasonably balance the  
          immediate risk to newborns and the need for safeguards provided  
          by existing relinquishment laws. 

          The Los Angeles County Board of Supervisors previously opposed  
          AB 81 unless amended to remove the 30-day surrender period, for  
          essentially the same reasons set forth by CWDA.  The Los Angeles  
          Inter-Agency Council on Child Abuse and Neglect (ICAN), the Los  
          Angeles County Sheriff, and Los Angeles County District  
          Attorney's Office also opposed increasing the surrender period  
          to 30 days.  In addition to the arguments made by CWDA, these  
          agencies pointed out that extending the time period might result  
          in abusive parents using the safe-surrender law to escape  
          criminal responsibility for child abuse or neglect.  Although  
          existing law only provides immunity from child abandonment  
          charges, these opponents feared that, as a practical matter,  
          anonymity could be used to escape liability for other crimes.  

          ICAN added that extending the time for surrender could extend  
          the time that a child is at risk "by delaying the intervention  
          of professionals who can help parents and develop a plan for  
          their child in a safe and caring manner."  

          As previously noted, the opponents discussed above do not oppose  
          the safe-surrender law in general, and are in fact very  
          supportive of the provision in the bill that will allow funds to  
          better publicize existing law.  

           General Opposition to Safe-Surrender Laws  :  Bastard Nation, an  
          organization concerned primarily with the rights of adopted  
          children, opposed previous bills for the same reasons that it  








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          opposed the initial law and the removal of the sunset.  Bastard  
          Nation contends that safe-surrender laws allow parents to bypass  
          the adoption process.  Children who are surrendered to a  
          safe-surrender site and subsequently adopted lose the right to  
          know their identity, medical history, or cultural heritage, and  
          they will forever lose their right to identify their birth  
          parents.  In addition, they claim, bypassing the adoption  
          process greatly restricts the birthparents' right to ever  
          reclaim the child, and it allows one parent to surrender a child  
          without the knowledge or consent of the other parent (usually  
          the father).  Bastard Nation rejects the argument that the  
          safe-surrender law can be justified on the grounds that it might  
          save a life.  More generally, Bastard Nation contends that the  
          safe-surrender law encourages unethical behavior, legitimates  
          abdication of parental responsibility, and will logically lead  
          to "'legal' abandonment of children of any age."  California  
          Open opposed a similar bill for similar reasons, but also  
          questions whether the DSS data accurately reflect the number of  
          abandoned babies in California.  California Open contends that  
          the law has had no impact on the number of babies abandoned  
          illegally statewide.

           The Governor's Veto of Similar Legislation Last Session  :  As  
          noted above, AB 81 and AB 2262 were vetoed last session.  In his  
          veto message of AB 81, the Governor stated:

               California's Safe Surrender Law already provides an  
               emergency alternative for a woman in crisis who may  
               otherwise abandon, abuse, or kill her baby.   
               California's law was carefully crafted to balance the  
               creation of a safe surrender option while preserving  
               the rights of children.  The current 72-hour period  
               contained in law allows for a no-questions-asked safe  
               surrender of a newborn, and is supported by research  
               and statistics which indicate that most neonaticide  
               occurs within the first day.  Experts have raised  
               concerns that instead of improving child safety,  
               increasing the time that a baby may be surrendered  
               from 72 hours will put newborns in greater risk by  
               keeping them in an unsafe environment without proper  
               care and supervision.

          The author hopes this year that, because of the continuing  
          success of the safe-surrender program, and the additional public  
          education resources, the Governor will reconsider his earlier  








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          view. 
           
          Prior Legislation  :  AB 2262 (Torrico), 2008, would have allowed  
          for the safe surrender of a baby up to 7 days old, rather than  
          72 hours; permitted a fire agency to designate a safe-surrender  
          site, upon approval of the local governing body; and would have  
          immunized a safe-surrender site and its personnel from criminal,  
          civil, or administrative liability, as specified.  The bill  
          would have directed the Department of Health Care Services,  
          among others, to issue updated instructions on or before July 1,  
          2009 to clarify what information was being gathered with respect  
          to surrendered babies and their mothers.  This bill was vetoed.

          AB 81 (Torrico), 2007, would have extended the age at which an  
          infant can be anonymously surrendered by a birth parent without  
          criminal liability for child abandonment under the  
          safe-surrender statute from 72 hours or younger to 7 days or  
          younger.  The bill would have also authorized a local fire  
          agency to be a safe-surrender site, as specified, and required  
          the Department of Social Services to conduct a statewide public  
          awareness campaign for the safe-surrender program and establish  
          a toll-free number to provide the public with information about  
          the program.  This bill was vetoed.

          AB 1873 (Torrico), of 2005-06, sought to expand the  
          safe-surrender law to allow a parent or individual with lawful  
          custody of a child 30 days old or younger to be surrendered to a  
          designated safe-surrender site.  This bill was vetoed.  

          SB 116 (Dutton), Chapter 625, Statutes of 2005, deleted the  
          sunset date of January 1, 2006 from the safe-surrender law. 

          SB 1413 (Brulte), Chapter 103, Statutes of 2004, immunized from  
          civil damages a person who assists another person to voluntarily  
          surrender physical custody of a newborn under the safe-  
          surrender law, provided that the person is not compensated,  
          renders the assistance in good faith, and believes in good faith  
          that the person being assisted is a parent or other person  
          having lawful custody of the newborn.  "Assistance" was defined  
          to include providing transportation or accompanying the parent  
          or other individual to the safe-surrender site.  The bill  
          further specified that this immunity would not extend to acts or  
          omissions constituting gross negligence.  

          SB 139 (Brulte), Chapter 150, Statutes 2003, provided that a  








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          child may be surrendered at any hospital or other designated  
          safe-surrender site.  Previously, a designated employee at a  
          hospital emergency room or other location was the only person  
          permitted to accept a baby.

          AB 2817 (Maddox), Chapter 1099, Statutes 2002, requires school  
          districts to include information regarding the safe-surrender  
          law in sex education classes.

          SB 1368 (Brulte), Chapter 824, Statutes of 2000, as described  
          above, originally enacted the state's safe-surrender law.  

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American College of Obstetricians and Gynecologists
          League of California Cities
          Yolo County Board of Supervisors

           Opposition 
           
          None on file
           
          Analysis Prepared by  :   Drew Liebert and Rachel Anderson / JUD.  
          / (916) 319-2334