Report Title:

Abandoned Children

Description:

Provides immunity from prosecution for leaving an unharmed newborn at a hospital. Provides immunity from liability for hospitals and their personnel for receiving a newborn.

THE SENATE

S.B. NO.

879

TWENTY-SECOND LEGISLATURE, 2003

 

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 safely, 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; and

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

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.

"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" 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. "Law enforcement officer" includes the attorney general, deputy attorneys general, county prosecuting attorneys, and deputy prosecuting attorneys engaged in the enforcement of criminal law.

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

(1) Any case where 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) Any case where 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) Any case where 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) Any case where the child is provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision; or

(5) Any case where 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; avoidance of prosecution. (a) A person may leave a newborn with a health care provider at a hospital without being subjected to prosecution for abandonment of a child pursuant to section 709-902; provided that:

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

(2) The newborn is left in an unharmed condition.

§ -3 Safe place for newborns. (a) A hospital may receive a newborn left with a health care provider on the hospital premises; provided that:

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

(2) The newborn is left in an unharmed condition.

(b) The hospital shall not:

(1) Inquire as to the identity of the mother or the person leaving the newborn; and

(2) Call a law enforcement officer;

provided the newborn is unharmed when presented to the hospital. The hospital may ask the mother or the person leaving the newborn about the medical history of the mother or newborn. The mother or the person leaving the newborn may provide any information. The hospital may provide the mother or the person leaving the newborn with information about how to contact relevant social service agencies.

(c) If a hospital receives a newborn left with a health care provider pursuant to subsection (a), the health care provider 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 during the temporary physical custody.

§ -4 Reporting. Within twenty-four hours of receiving a newborn under section -3, the hospital shall inform the department that a newborn has been left at the hospital. The hospital shall not inform the department before the mother or the person leaving the newborn leaves the hospital.

§ -5 Immunity. (a) A hospital with responsibility for performing duties under this chapter, and any health care provider working at the hospital, 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, and shall be immune from any civil liability that otherwise might result from merely receiving a newborn.

(b) A hospital performing duties under this chapter, or any health care provider working at the hospital, 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 section.

§ -6 Duty to reunify; duty to search for relatives; preferences not applicable. (a) Upon receiving custody of a newborn after discharge from a hospital that received a newborn 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 does not have information as to the identity of the newborn, 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 left at a hospital 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) The act of a person leaving a newborn at a hospital pursuant to section -2 shall not constitute a violation of this section.

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

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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