Reforming the safe haven in Ohio: protecting the rights of mothers through anonymity.

• Author: Neal, Brittany

1. INTRODUCTION II. THE BEGINNING OF STATUTORY PROTECTION A. Neoanticide and Infanticide: Preventing Maternal Crimes B. Texas' Baby Moses Law C. The Disaster of Nebraska's 2008 Safe Haven Legislation D. The Possibility of National Legislation III. KEY CHARACTERISTICS OF SAFE HAVEN LAWS A. The Relinquishment Process B. Statistical Insufficiencies Regarding Reports of Infant Abandonment C. Increased Awareness of the Protections Afforded by Safe Haven Laws D. Necessary Elements Comprising All Safe Haven Laws 1. Limited Participation 2. Age Restriction 3. Designated Locations 4. Anonymity and Immunity for Mothers IV. OHIO'S SAFE HAVEN LAW V. THE CONFLICT FOUND IN IN RE BABY BOY DOE A. Statute of "No Further Force and Effect" B. Ohio Constitutional Rules of Construction Under Article IV C. Ramifications of In re Baby Boy Doe VI. IMPORTANCE OF THE ANONYMITY REQUIREMENT A. The Myth of the Maternal Instinct B. Retaining the Protections Afforded Under Roe v. Wade 1. A Recent Trend Toward Restriction C. Situational Circumstances D. Legislative Intent for Anonymity VII. CRITICISM SURROUNDING SAFE HAVEN LAWS A. Paternal Rights B. Hindrance to an Open Adoption Process VIII. PROPOSED AMENDMENT TO JUVENILE RULE I(C) IX. CONCLUSION I. INTRODUCTION

   Gruesome headlines of hours-old infants discarded and left for dead pepper local news channels nationwide on almost a nightly basis. Unfortunately, most people are familiar with the tragic cliche where a prom queen gives birth in the girls' restroom only to return a few minutes later to the dance floor. (1) Ohio is not immune to such tragedies. In June 2009, authorities found a newborn infant dumped in the bushes outside a Meijer store with its umbilical cord still attached--left, no doubt, by a terrified mother who did not know where to turn. (2) While the fortunate actions of a Good Samaritan helped to keep this infant alive, many other stories do not end as well. (3) In another tragic example, one Ohio mother is currently serving life in prison for putting her infant daughter in a microwave oven, causing her to burn to death. (4) Despite varying locations, the underlying motivation behind such crimes is almost always the same; the shame and panic can overwhelm a woman unprepared for motherhood. (5) To protect the lives of infants, all states and the District of Columbia have enacted some version of a safe haven law in the hopes of providing a safe alternative for new parents contemplating the unthinkable. (6) The laws are geared towards giving mothers an "anonymous way to safely relinquish their infant without any legal repercussions" by allowing for the safe abandonment of infants under specific conditions. (7)

   The Ohio legislature enacted the "Desertion of Child Under 72 Hours Old" statute in 2001 for much of the same reasons that other similar statutes have been adopted. (8) Just six years later, however, the Cuyahoga County Court of Common Pleas held that the statute was unconstitutional and of "no further force and effect." (9) According to the court, the statute's guaranteed anonymity provision was in direct conflict with the juvenile court's procedural requirement of parental notification of an abandoned child. (10) The court's reading of the statute negates one of the most critical aspects of all safe haven laws by taking away the mother's right to not withhold her identity. (11)

   This Note discusses the conflict between the statewide safe haven law and the Ohio juvenile rules regarding procedure. It purports that to protect the rights of new mothers and retain the essential element of anonymity, Ohio's Juvenile Rule I(C) needs to be amended to maintain the state's current safe haven law. Therefore, because of the statewide threat Ohio courts place on Ohio's safe haven law, Juvenile Rule I(C) needs to explicitly provide for an additional exception in cases of child relinquishment.

   Section II of this Note discusses the beginning of state safe haven legislation and what the laws are attempting to prevent. Section III provides fundamental and common characteristics of safe haven laws. Section IV closely examines the current Ohio safe haven provision. Section V analyzes the conflict between the safe haven law and state juvenile procedural provisions. Section VI argues the importance of the anonymity requirement within Ohio's safe haven law. Section VII expands upon valid criticisms of the safe haven law. Section VIII then proposes an amendment to Juvenile Rule I(C) to retain the right of anonymity as currently found in Ohio's safe haven law. Finally, Section IX provides concluding remarks on the future of Ohio's safe haven statute and its anonymity provision within the larger context of safe haven legislation throughout the country.

2. THE BEGINNING OF STATUTORY PROTECTION

   1. Neoanticide and Infanticide: Preventing Maternal Crimes

      The sensationalized media attention surrounding infants abandoned by their mothers and left for dead seems to stem from most people's inability to understand such terrible and seemingly senseless violence. (12) When accounts of mothers who kill their own children are spread across newspapers and flashed on television screens, there seems to be an inherent "violat[ion] of our most cherished notions of life, safety, and trust." (13) That is, society has a difficult time rejecting the prevalent and comforting "stereotype that universally casts mothers as the altruistic protectors of their children." (14) While neonaticide and infanticide may be two of the most unfathomable crimes, they occur across the country with surprising regularity. (15) Infanticide is the crime of killing an infant, usually under the age of one. (16) Neonaticide, on the other hand, is typically defined as "the murder of an infant within the first twenty-four hours of life." (17) Interestingly, infanticide--since its earliest inception--has only applied to women who kill their own children and not fathers who may be guilty of a similar homicide. (18) Additionally, psychiatrists have recognized that mothers commit nearly all acts of neonaticide. (19) This gender-based specification between normal homicide and infanticide may be a contributing factor to the female-centeredness of many states' safe haven laws. (20)

      Because most states limit safe haven statutes to apply to infants that are three days old, the legislation clearly attempts to prevent neonaticide. (21) Sometimes, the only real unifying characteristic between these desperate women is a severe psychological illness given the fact that "women who commit neonaticide are of every age, of every race, ethnicity, and socio-economic class." (22) Psychiatrists have noted, however, that mothers who commit neonaticide are often young, single, and stuck with an unwanted pregnancy. (23) Additionally, almost none of the women had a stable relationship with a male partner when the neonaticide occurred. (24) Most importantly, there seems to be a strong tendency of isolation among these women, in an attempt to hide their pregnancies from those closest to them. (25) Given the general culture of secrecy that permeates through women who commit infanticide and neonaticide, safe haven laws are even more necessary. An unfortunate number of these panicked women endure hours of labor alone--suffering from both shock and exhaustion--and ultimately end up frantically discarding their babies in places like the trash or the toilet. (26) Success will be achieved if only a handful remember hearing about the protection of their state's safe haven statute. (27)

   2. Texas' Baby Moses Law

      Safe haven laws are a relatively recent development on the legal scene, only coming into existence within the last fifteen years. (28) America's first safe haven law was enacted in Texas in 1999, following a twelve-month period in which thirteen newborn babies were found discarded in dumpsters or on doorsteps. (29) The legislation's sponsors argued that a safe haven statute would lower the occurrence of such tragic events in the future. (30) Texas' safe haven legislation was introduced as House Bill 3423 by Representative Geanie Morrision and enacted into law on July 15, 1999. (31) The law provided that an infant up to thirty days old could be left with a designated emergency medical provider by the mother without being prosecuted for abandonment or neglect. (32) Additionally, the statute provided mothers with an affirmative defense to prosecution of child abandonment or neglect charges. (33) Finally, while not a provision of the original Texas statute, mothers are currently guaranteed the right to remain anonymous when leaving their children. (34) The statute states that a "designated emergency infant care provider has no legal duty to ascertain the parent's identity and the parent may remain anonymous. However, the parent may be given a form for voluntary disclosure of the child's medical facts and history." (35)

      Since the passage of Texas' safe haven law, legislatures nationwide continue to recognize the value and necessity of protecting the rights of the mothers who relinquish their children. The popularity and practical appeal of the Texas safe haven law was immediate. Within a year or two of its promulgation, thirty states introduced similar bills and fourteen states already had laws in place. (36) As early as September 2001, at least twenty-four states did not require the mother relinquishing her child to disclose any personal information about herself or her child to authorized personnel. (37) By February 2011, the number of state statutes that explicitly required anonymity to be provided to the relinquishing mother increased to thirty-four states and the District of Columbia. (38)

   3. The Disaster of Nebraska's 2008 Safe Haven Legislation

      Nebraska is the most recent state to enact a safe haven law. (39) Nebraska's lawmakers struggled for over seven years before finally passing a statute. (40) When Governor Dave Heineman passed Legislative Bill 157 in...