BILL ANALYSIS
SB 116
Page 1
Date of Hearing: June 28, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 116 (Dutton) - As Amended: March 30, 2005
SENATE VOTE : 34-0
SUBJECT : CHILD ABANDONMENT: SAFE SURRENDER OF NEWBORNS
KEY ISSUE : Should the sunset provision of the "safely
surrendered baby" law of 2000 be eliminated, thereby making the
law PERMANENT?
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 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 permanent.
Over 25 local governments, law enforcement and social services
groups support the bill. They contend that the experience of
the past five years shows that the Safely Surrendered Baby Law
saves babies' lives. According to the author, since passage of
SB 1368 in 2000, 74 newborn babies have been surrendered to
designated safe surrender sites. Opponents, including Concerned
United Birthparents and Bastard Nation, argue that it is not
clear that the bill saves lives and that it inadvertently could
be used to short-circuit adoption processes.
SUMMARY : Deletes the sunset date for the "safely surrendered
baby" law. Specifically this bill :
1)Deletes the sunset date of January 1, 2006 for the "safely
surrendered baby" law under which 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
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may not be prosecuted for child abandonment, thus making the
law effective indefinitely.
2)Defines parent, for purposes of the safe surrender law, as a
birth parent of a minor child who is 72 hours or younger.
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 a child,
or to present the child to an orphanage or similar institution
as an orphan. (Penal Code Section 271.)
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)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.
This statute sunsets on January 1, 2006. (Health and Safety
Code Section 1255.7.)
4)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. This statute sunsets on January 1, 2006. (Penal Code
Section 271.5.)
5)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 specified 14-day period. This
statute sunsets on January 1, 2006 and will thereafter be
reenacted without the provision for safely surrendered
newborns. (Welfare and Institutions Code Section 300.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : 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,
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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 likely
die. It was spurred by a group that retrieved dead abandoned
babies from county morgues and 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. One of the primary
reasons for including the sunset provision in SB 1368 was to
determine whether or not the law would achieve its objective.
This bill, sponsored by, among others, the Boards of Supervisors
of Los Angeles and San Bernardino Counties, would now remove
that sunset provision and make the law effective indefinitely.
According to the author:
Persons are abandoning and or discarding newborn
infants, resulting in the death of the infants. Yet,
in some cases, as result of SB 1368 (Brulte), Chapter
824, Statutes of 2000, persons are now safely
surrendering newborns. SB 1368 sunsets January 1,
2006. . . . This bill will delete the sunset provision
thus making permanent the Safe Arms for Newborns Law.
Over 25 local governments, law enforcement and social services
groups support the bill. They provide a straight-forward
argument in support of SB 116: the experience of the past five
years shows that the Safely Surrendered Baby Law saves babies'
lives. According to the author, since passage of SB 1368 in
2000, 111 children one year old or younger were found abandoned.
During the same period, 74 newborn babies have been surrendered
to designated safe surrender sites. While there is no way to
determine whether those 74 newborns would have been abandoned in
the absence of the law, proponents claim that if even one baby's
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life has been saved, the law is worthwhile. Proponents do not
believe that the law encourages abandonment; rather, they
believe that the law provides women with an alternative to the
sometimes fatal option of abandonment.
In addition to any lives that have already been saved, the many
local governments and social service and law enforcement
agencies writing in support of the bill point out that they have
conducted educational and training programs in order to
implement the law. Proponents claim SB 1368 has achieved, and
will continue to achieve, its stated purpose of saving the lives
of unwanted newborns. As the educational efforts increase,
proponents contend, so too will the number of babies saved. To
be sure, this effort may take time. For example, officials in
Los Angeles County report that 2004 was the first year that the
number of babies surrendered in the state exceeded the number
abandoned. As more persons become aware of the law, the ratio
of surrendered to abandoned babies should increase.
ARGUMENTS IN OPPOSITION : Opponents of SB 116 -- Bastard Nation,
Bay Area Birthmothers Association, California Open and Concerned
United Birthparents, Inc. -- make a number of arguments against
eliminating the sunset provision, but the three most common
arguments are variations of the following:
1)As a matter of public policy, the state should encourage
mothers of unwanted babies to surrender babies to adoption
agencies rather than to safe baby sites. In short, the safely
surrendered baby law allows parents of unwanted children to
circumvent adoption law and its concomitant safeguards.
2)As a consequence of circumventing the usual adoption process,
the law permits one parent to sever parental rights without
the consent of the other parent, usually the father.
3)The evidence does not conclusively determine that the law
saves lives: first, those 74 babies surrendered could have
been safely turned over to an adoption agency -- and not a
dumpster -- in the absence of the law; second, opponents
contend that the law has not reduced the number of abandoned
babies.
In short, opponents contend that there is no evidence to support
the claim that the law is working. Two of the opponents, the
Concerned United Birthparents and the Bay Area Birthmothers
Association, would support amendments that would 1) extend the
sunset date to 2007 or 2008 and 2) provide more specific methods
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for tracking the number of abandoned and surrendered newborns.
Opponents are no doubt correct that public policy should
encourage parents of unwanted children to use the adoption
process. What the expectant mother needs, the opponents
contend, are services which "will provide her with ways to
parent her child as the first option, and with adoption as a
second choice." However, SB 116 does not prevent an expectant
parent from exercising either option. This bill would simply
give the expectant parent a third alternative to abandonment.
Most importantly, the safely surrendered baby law was enacted as
an alternative to abandonment and its often tragic consequences,
not as an alternative to adoption.
Opponents correctly point out that the safely surrendered baby
law provides fewer protections to the rights of the
non-surrendering parent than does adoption law and procedure.
However, here again it must be noted that the safely surrendered
baby law is not an alternative to adoption, but an alternative
to abandonment. A mother who abandons a newborn also deprives
the father of his parental rights, and most likely irreversibly
so.
Opponents are correct that existing evidence is not conclusive.
We know only that since the law was enacted 74 babies have been
safely surrendered under its provisions. Opponents claim that
that it is possible that at least some of these 74 babies would
have been surrendered to an adoption agency in the absence of
the law. What the opponents do not point out is that it is
equally possible that, without the law, some of these 74 babies
would have been abandoned and possibly died. We cannot know
with certainty the fate of those newborns. However, the
statistics on the ratio of surrendered-to-abandoned newborns,
provided by the opponents, make a strong case for the law's
effectiveness over time. The ratio of surrendered-to-abandoned
babies in California has become more favorable each year since
the law was enacted, and the total number of abandoned babies is
decreasing.
Prior Legislation : SB 1368 (Brulte, Chapter 824, Statutes 2000)
established the safe surrender law.
SB 139 (Brulte, Chapter 150, Statutes 2003) made the information
about the parent confidential and allowed the county to
designate safe surrender sites other than a hospital emergency
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room.
SB 1413 (Brulte, Chapter 103, Statutes 2004) immunized those who
assist a parent or other person to safely surrender a newborn
from civil liability for injury or death of the newborn, except
for gross negligence, recklessness or willful misconduct.
REGISTERED SUPPORT / OPPOSITION :
Support
American College of Obstetricians and Gynecologists
California Catholic Conference
California Church IMPACT
California Medical Association
California Peace Officers Association
California Pro Life Council
California Right to Life Committee
California State PTA
City of Los Angeles
City of Yaicaipa
Consulate General of Mexico
County Welfare Directors Association of California
Family Law Section of the State Bar of California
Guardian Angels and Project Cuddle
Hospital Council of Northern and Central California
Los Angeles County Board of Supervisors
Los Angeles County District Attorney's Office
Milpitas Fire Department
Peace Officers Research Association of California (PORAC)
San Bernardino County Sheriff
San Bernardino County Board of Supervisors
San Bernardino County Sheriff's Department
Santa Barbara County KIDS Network
Santa Clara County Board of Supervisors
Santa Clara County Fire Department
Santa Clara County Social Services Agency
Santa Clara Valley Medical Center
San Mateo County Board of Supervisors
Opposition
Bastard Nation
Bay Area Birthmothers Association
California Open
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Concerned United Birthparents, Inc.
Analysis Prepared by : Leora Gershenzon and Thomas Clark /
JUD. / (916) 319-2334