BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 116 S
Senator Dutton B
As Introduced
Hearing Date: March 15, 2005 1
Health and Safety Code; Penal Code 1
Welfare and Institutions Code 6
GMO:cjt
SUBJECT
Child Abandonment: Safe Surrender of Newborns
DESCRIPTION
Under existing law a parent or other person with lawful
custody of a baby 72 hours old or younger who surrenders
the baby to a county-designated safe surrender site may not
be prosecuted for child abandonment. Existing law provides
a procedure for the safe surrender of the newborn at
designated sites, the reclaiming of that child, and the
transfer of the surrendered child to the county child
protective services agency for the purpose of making the
child a dependent of the court. This "safely surrendered
baby" law sunsets on January 1, 2006.
This bill would delete the sunset date of January 1, 2006,
making the law effective indefinitely.
BACKGROUND
SB 1368 (Brulte, Chapter 824, Statutes of 2000) enacted the
provisions governing the surrender of a newborn by a parent
or other responsible person to a safe surrender site, where
the abandoned newborn may receive medical and other care
until the county takes over custody of the newborn. That
bill was introduced to provide mothers of unwanted newborns
a safe alternative to abandonment of the child in trash
bins, alleys, or other places where the babies would be
unprotected and could die. It was spurred by a group that
retrieved dead abandoned babies from county morgues and
(more)
SB 116 (Dutton)
Page 2
buried them in a specially designated cemetery.
In order to reduce the number of babies abandoned in such a
manner and give the babies a chance to survive, SB 1368
provided a safe place (such as an emergency room of a
hospital) where a person may surrender the baby, may
retrieve the baby within a specified period if there is a
change of heart, and immunity from criminal penalties under
the child abandonment laws to the parent and/or person who
delivered the baby to the safe surrender site.
To get the bill enacted, a sunset date of January 1, 2006
was amended into the bill.
CHANGES TO EXISTING LAW
Existing law 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 Sec. 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
Sec. 271a.]
Existing law 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 Sec. 270.]
Existing law delineates 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 Sec.
1255.7.] This statute sunsets on January 1, 2006.
Existing law protects from prosecution under the state'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
Sec. 271.5.] This statute sunsets on January 1, 2006.
Existing law describes the children who are within the
jurisdiction of the juvenile court and may be adjudged
dependents of the court, including minor children who are
surrendered under the provisions of the safe surrender of
newborns law and who have not been reclaimed within the
SB 116 (Dutton)
Page 3
specified 14-day period. [Welfare and Institutions Code
Sec. 300.] This statute sunsets on January 1, 2006 and
will be reenacted without the provision for safely
surrendered newborns.
This bill would delete the sunset date of January 1, 2006
to make all of the above effective indefinitely.
COMMENT
1. Need for the bill
According to the author, since passage of SB 1368 until
March 2005, 111 children one year old or younger were
found abandoned. During the same period, 74 newborn
babies have been surrendered safely under its procedures.
Proponents of the bill state that many communities have
conducted training of fire station employees on the
Safely Surrendered Baby Law, as well as campaigns to
educate the public about this process. To those groups
who have dealt with babies who were abandoned and died,
one baby's life saved is worth all these efforts, and
worth continuing these provisions indefinitely.
2. Sunset clauses deleted
SB 1368 contained the sunset clauses because there was no
empirical evidence presented to the Legislature that the
proposal would indeed save any baby's life. Further, the
sunset clauses were critical because the bill immunized a
mother and others from criminal prosecution under the
state's child abandonment laws, and there was no means to
gauge its impact. If the procedure enacted by the SB
1368 did not result in newborn babies' lives being saved,
the sunset clauses would reinstate the law automatically.
As earlier stated, the author claims there were 74 babies
safely surrendered between 2001 and the end of 2004.
Further, there has been widespread education and training
conducted by concerned communities to implement the
provisions of SB 1368. Proponents claim SB 1368 has
achieved and will continue to achieve its stated purpose
SB 116 (Dutton)
Page 4
of saving the lives of unwanted newborns, and therefore
SB 116 should make this law effective indefinitely.
SB 116 would make no changes to existing law relating to
the safe surrender of newborn babies, except for the
deletion of the sunset clauses in relevant statutes
enacted in 2000.
Thus, under existing law and under SB 116:
A parent or other person with lawful custody of a
newborn may, without fear of prosecution for child
abandonment, surrender a baby 72 hours old or younger
to a county-designated "safe-surrender site."
Trained personnel at the safe surrender site are
required to accept the baby so surrendered and to
perform several tasks related to identifying the child
confidentially and providing the parent or other
person with a copy of the identifying information for
purposes of reclaiming the baby later, if desired;
obtaining as much medical information about the baby
as possible; providing medical screening and medical
care to the baby; and notifying the county child
welfare services agency within 48 hours of the fact
that the safe surrender site has received the baby.
The county child welfare services agency assumes
temporary custody of the newborn upon being notified
and immediately conducts an investigation and within
no more than 24 hours reports all known identifying
information concerning the child (except personal
identifying information pertaining to the parent or
person who surrendered the baby) to the California
Missing Children Clearinghouse and to the National
Crime Information Center. If the child is not
reclaimed the child protective services agency takes
custody of the child and files a petition in juvenile
court to have the child declared a dependent of the
court.
The parent or other person who safely surrendered
the newborn may reclaim the baby within 14 days of the
date of surrender, under specified conditions. If
the newborn is still at the safe surrender site, the
site may return the newborn to the parent or person
claiming the baby, or contact a child protective
agency if there is a reasonable suspicion that the
SB 116 (Dutton)
Page 5
newborn has been the victim of child abuse or neglect.
The safe surrender site or its personnel at the
safe surrender site are immune from civil, criminal or
administrative liability for accepting the newborn,
even in instances where the baby surrendered is older
than 72 hours or where the parent or person did not
have lawful physical custody of the newborn.
Persons who "assist " the parent or person
surrendering the newborn for the purpose of effecting
the safe surrender, without compensation, and in good
faith, are not civilly liable for injury to or death
of the newborn as a result of any act or omission,
except to those acts or omissions constituting gross
negligence, recklessness, or willful misconduct.
Personally identifying information pertaining to
the parent or other person surrendering the child that
is obtained from the questionnaire provided at the
safe surrender site are confidential and protected
from disclosure under the Public Records Act.
3. Opposition to extension
An opponent of SB 116 states that "legalizing of
abandonment [of newborn babies] is not the solution," and
contends that "there is no evidence or study to suggest
that these children would not have been safely
relinquished under existing law to licensed adoption
agencies in the state." Opponent, which is an advocate
of open adoptions, argues that with California's over 90
licensed adoption agencies ready and able to serve
expectant mothers who do not desire to parent, extending
the life of the safely surrendered baby law is premature.
Instead, the group suggests extending the statute to
January 1, 2007 and requiring a "quantifiable report"
that tracks newborn abandonments and deaths.
Another opponent insists that "[w]hat an expectant mother
needs now is unbiased services, which will provide her
with ways to parent her child as the first option, and
with adoption as a second choice."
While this may be true, the current safely surrendered
baby law does not prevent or diminish an expectant
mother's choice to relinquish an unwanted child for
adoption. SB 116 would simply extend this third
SB 116 (Dutton)
Page 6
alternative to the expectant mother.
4. Co-authorships requested
The following members have requested inclusion as
co-authors of SB 116: Senators Simitian, Scott, Chesbro,
Cox, Ducheny, Escutia, Margett, and Runner.
Support: Fire Department, Santa Clara County; Social
Services Agency, Santa
Clara County; California Catholic Conference;
Milpitas Fire
Department; San Bernardino County Sheriff;
Family Law Section of the
State Bar of California; California Right to
Life Committee; Bay Area
Birthmothers Association; San Bernardino County;
California Medical
Association; Peace Officers Research Association
of California (PORAC)
Opposition: California Open; Bay Area Birthmothers
Association; Bastard
Nation
HISTORY
Source: Los Angeles County Board of Supervisors; San
Bernardino County Board of Supervisors; Board of
Supervisors, Santa Clara County; Guardian of Angels
and Project Cuddle
Related Pending Legislation: None Known
Prior Legislation: SB 1368 (Brulte, Ch. 824, Stats. 2000).
See Background;
SB 139 (Brulte, Ch. 150, Stats. 2003) made
the information about the parent
confidential and allowed the county to
designate safe surrender sites other than a
hospital emergency room;
SB 1413 (Brulte, Ch. 103, Stats. 2004)
immunized those who assist a parent or other
SB 116 (Dutton)
Page 7
person to safely surrender a newborn from
civil liability for injury or death of the
newborn, except for gross negligence,
recklessness or willful misconduct.
**************