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The Chipping Away at Safe Haven Laws

Boston Globe

March 14, 2024

“No Shame, No Blame, No Names.” That’s how one billboard advertises Safe Haven baby boxes, where a mother can anonymously leave her newborn at a fire station or other emergency facility if she feels she cannot care for the child.

Unfortunately, this option, which is available in 19 states including Massachusetts, might not be effective for long. Officials in New Mexico have interpreted the law to mean that they have to track down these mothers, ensure that they are safe, confirm that they actually don’t want to care for the baby, inquire about whether their relatives might want to care for the baby, and find out if the infant is of Native American ancestry.

“How is this possible that this is actually happening like this when we have these boxes for a reason … which is anonymity,” Monica Kelsey, founder of the Safe Haven Baby Boxes, said on TikTok. She spoke with one of the investigators for the New Mexico Children, Youth, and Families Department, who told her they were looking for the mother who used one of the boxes to see if any of her relatives wanted the child. “What if she’s running from her family?” Kelsey asked. What if they have drug problems or are abusive?

According to the National Safe Haven Alliance, since 1999 when the first safe haven law was passed in Texas, more than 1,600 babies have been abandoned in the United States, with only about 600 found alive. Yet more than 4,500 were relinquished at safe haven locations. The babies who are relinquished in these locations typically enter the child welfare system, where they are placed in foster care and, hopefully, ultimately adopted.

Critics have claimed that these boxes signify a paltry answer to the problem of women with unwanted pregnancies. (A number of states have moved to pass Safe Haven laws since the Supreme Court’s 2022 Dobbs decision overturning Roe v. Wade.) Michelle Oberman, a law professor at Santa Clara University in California, noted, “It feels to me like such a limited and heartless response to say, ‘We don’t care that you’re unhoused, addicted or mentally ill — just drop off your baby and we’ll let you go on your way.’ ” It is not as if tracking women down through these investigations is the only way to offer help to the vulnerable.

Ryan Hanlon, who heads the National Council for Adoption, told me, “Without additional information, why would we act to disrupt the decision the mother made in placing her child as she did? She may have good reasons [like her safety or her child’s safety] for not seeking the support of her friends or family. Undermining the mother’s choice may lead to the negative outcomes she desperately sought to prevent.”

It is clear that there are women (including in states like New Mexico where abortion is unrestricted) who believe that this is the best option. They have presumably considered whether they could care for the baby themselves as well as whether a relative would be a good choice.

Unfortunately, the mother’s choice is being overridden by the current presumption among child welfare professionals that children are always best off with their parents, and if not with a parent, then with other relatives. Under normal circumstances, this is true. But when children who experience severe abuse or chronic neglect are made to stay with their families or reunify after a short period of time, the results can be disastrous. And when states give preference to relatives — overlooking safety concerns just because a child shares DNA with them — things can turn tragic. Harmony Montgomery is but one illustration of this policy — after living with a safe and loving nonrelative foster family for 28 months of her first 3 years, she was placed with her father, who had a violent criminal history and had previously had almost no contact with her. Less than 10 months later he beat her to death.

Similarly, the idea that New Mexico would risk a mother’s or infant’s safety in order to find out whether the relinquished child has Native American ancestry also stems from an ideology that privileges racial heritage over the best interests of the child. It is true that the federal Indian Child Welfare Act requires efforts to place a foster child with a Native family (even, outrageously enough, over the preferences of that child’s actual relatives). But tracking down mothers who use these boxes in order to make such a determination is an intrusion on privacy and requires a breathtaking level of arrogance. Do government bureaucrats really know better than the child’s own mother whether she or members of her family or tribe are able to raise that child?

It is nothing short of extraordinary that officials who would in any other circumstance support a woman’s right to choose (not to mention the “right to privacy” on which the original Roe v. Wade decision rested) would subvert that mother’s choice and her anonymity, as well as the safety and well-being of her child, in order to keep that child with relatives.