Report Title:

Abandoned Children; Immunity from Prosecution

Description:

Provides immunity from prosecution for leaving an unharmed newborn at a hospital, fire station or police station within 72 hours of birth. Provides immunity from liability for hospitals, fire stations, and police stations and their personnel for receiving a newborn. (HB1901 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

1901

TWENTY-SECOND LEGISLATURE, 2004

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to child protection.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Current law allows for the prosecution of parents who abandon their newborn infants. These parents are often young mothers who are unable to deal with the harsh reality of parenthood. Their solution is leaving the newborn in a populated area with the hope that someone will find and care for the child. Although the possibility of prosecution was intended to deter mothers from taking such a careless approach, newborn infants have suffered and died as the result of abandonment in life-threatening situations.

"Baby drop-off" laws take a different approach by placing the immediate concern on the child's needs rather than focusing on the mother's liability. The goal is to create a system where parents can safely leave their newborns without fear of being prosecuted for child abandonment. Anonymity, confidentiality, and freedom from prosecution for parents may encourage them to leave a newborn infant at a suitably safe place, and thus save the newborn infant's life.

The purpose of this Act is to:

(1) Provide immunity from prosecution for leaving an unharmed newborn at a hospital, fire station, or police station; and

(2) Provide immunity from liability for hospitals, fire stations, and police stations, and their personnel for receiving a newborn.

Last year the governor vetoed nearly identical House Bill No. 133, Conference Draft 1, objecting to the individual leaving the baby without having to leave medical or genealogical history. This Act provides that the individual is allowed to leave the baby if the individual also leaves any known family medical history of major illnesses or diseases. However, the legislature finds that the governor's objection is weak in the face of current medical privacy laws that honor the physician-patient privilege of nondisclosure to parents and other family members.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

safe place for newborns

   -1 Definitions. As used in this chapter:

"Department" means the department of human services.

"Firefighter" means a member of a fire department whose principal duties are to prevent and fight fires.

"Fire station" means a building for fire equipment and firefighters.

"Health care provider" means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.

"Hospital" means a facility licensed as a hospital by the department of health and accredited by the Joint Commission on Accreditation of Health Care Organizations.

"Law enforcement officer or police officer":

(1) Means any public servant, whether employed by the State or any county, or by the United States, vested by law with a duty to maintain public order, to make arrests for offenses, or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses;

(2) Includes the attorney general, deputy attorneys general, county prosecuting attorneys, and deputy prosecuting attorneys engaged in the enforcement of criminal law.

"Police station" means a facility where police officers daily report for assignments, paperwork, and other police business.

"Unharmed condition" means no evidence of injury to a child's physical or psychological health or welfare, as evidenced in any case where:

(1) The child exhibits no evidence of:

(A) Substantial or multiple skin bruising or any other internal bleeding;

(B) Any injury to skin causing substantial bleeding;

(C) Malnutrition;

(D) Failure to thrive;

(E) Burn or burns;

(F) Poisoning;

(G) Fracture of any bone;

(H) Subdural hematoma;

(I) Soft tissue swelling;

(J) Extreme pain;

(K) Extreme mental distress;

(L) Gross degradation; or

(M) Death;

(2) The child has not been the victim of sexual contact or conduct, including but not limited to rape, sodomy, molestation, sexual fondling, or incest; no obscene or pornographic photographing, filming, or depiction; or no other similar forms of sexual exploitation;

(3) Injury does not exist to the psychological capacity of a child as is evidenced by a substantial impairment in the child's ability to function;

(4) The child is provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision; or

(5) The child is not provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; except in cases where a child's family provides the drugs to the child pursuant to the direction or prescription of a practitioner, as defined in section 712-1240.

   -2 Unharmed newborns left at hospitals, fire stations, or police stations; avoidance of prosecution. A person may leave a newborn child with a health care provider at a hospital, a firefighter at a fire station, or a police officer at a police station, or their personnel, without being subjected to prosecution for abandonment of a child pursuant to section 709-902; provided that:

(1) The newborn child was born within seventy-two hours of being left at the hospital, fire station, or police station as determined within a reasonable degree of medical certainty;

(2) The newborn child is left in an unharmed condition; and

(3) The newborn child is accompanied by written information concerning any known family medical history, including major illnesses and diseases.

   -3 Safe place for newborns. (a) A hospital, fire station, or police station may receive a newborn child left with a health care provider, firefighter, or police officer, or its personnel, on the respective premises; provided that:

(1) The newborn child was born within seventy-two hours of being left at the hospital, fire station, or police station as determined within a reasonable degree of medical certainty;

(2) The newborn child is left in an unharmed condition; and

(3) The newborn child is accompanied by written information concerning any family medical history, including major illnesses and diseases.

(b) The hospital, fire station, or police station personnel shall not inquire into the identity of the mother or the person leaving the newborn child; provided the newborn child is unharmed when presented to the hospital. The hospital, fire station, or police station shall notify law enforcement that a newborn child was received for purposes of matching the child with missing children reports. The hospital, fire station, or police station shall ask the mother or the person leaving the newborn child about the medical history of the mother or newborn child. The hospital, fire station, or police station may provide the mother or the person leaving the newborn child with information about how to contact relevant social service agencies.

(c) If a hospital, fire station, or police station personnel receives a newborn child left with a health care provider, firefighter, or police officer, or their personnel respectively, pursuant to subsection (a), the health care provider, firefighter, or police officer, or their personnel, shall perform any act necessary, in accordance with generally accepted standards of professional practice, to protect, preserve, or aid the physical health or safety of the newborn child during the temporary physical custody.

   -4 Reporting. Within twenty-four hours of receiving a newborn under section    -3, the hospital, fire station, or police station shall inform the department that a newborn has been left at the premises; provided however, the hospital, fire station, or police station shall not inform the department before the mother or the person leaving the newborn leaves the premises.

   -5 Immunity. (a) A hospital with responsibility for performing duties under this chapter, and any health care provider working at the hospital, a fire station and any firefighter or fire personnel, or a police station and police officer or police personnel shall be immune from any criminal liability that otherwise might result from their actions, if they are acting in good faith in receiving a newborn child, and shall be immune from any civil liability that otherwise might result from merely receiving a newborn child.

(b) A hospital performing duties under this chapter, or any health care provider working at the hospital, a fire station or any firefighter or fire personnel, or police station or any police officer or police personnel, who is a mandated reporter under section 350-1.1, shall be immune from any criminal or civil liability that otherwise might result from the failure to make a report under section 350-1.1 if the person is acting in good faith in complying with this chapter.

   -6 Authority to reunify; placement. (a) Upon receiving custody of a newborn child after discharge from a hospital that received a newborn child pursuant to section    -3, the department may reunify the newborn with the newborn's parents.

(b) The department may:

(1) Search for relatives of the newborn as a placement or permanency option; or

(2) Implement other placement requirements that give a preference to relatives;

provided that the department has information as to the identity of the newborn child, the newborn's mother, or the newborn's father.

   -7 Status of child. For purposes of proceedings under this chapter and adoption proceedings, a newborn child left at a hospital, fire station, or police station under section    -3 shall be considered an abandoned child."

SECTION 3. Section 709-902, Hawaii Revised Statutes, is amended to read as follows:

"709-902 Abandonment of a child. (1) A person commits the offense of abandonment of a child if, being a parent, guardian, or other person legally charged with the care or custody of a child less than fourteen years old, the person deserts the child in any place with intent to abandon it.

(2) Leaving a newborn child at a hospital, fire station, or police station pursuant to section    -2 shall not constitute a violation of this section.

SECTION 4. The Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

[(2)] (3) Abandonment of a child is a misdemeanor."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.