Legal experts: Safe haven law has gray areas

15 Finds Out takes a closer look at how the safe haven law would apply to baby boxes.

FORT WAYNE, Ind. (WANE) – There’s one safe haven law in Indiana, but depending on who you ask, it could mean two different things.

The code is now at the center of the controversy surrounding baby boxes. Safe Haven Baby Boxes installed the first unit in the Woodburn fire station in April. There’s also one in Michigan City. The idea is that someone can surrender an infant in the baby box, which is installed in the wall of the fire station, completely anonymously.

In a recent letter, the director of the Department of Child Services wrote that baby boxes are in conflict with the safe haven law saying “it requires a person … to surrender the infant to an actual person, defined as an ’emergency medical services provider.'” She added that if someone used a baby box, it could trigger a DCS investigation.

But, Safe Haven Baby Boxes’ attorney argued the law doesn’t require a person-to-person hand-off, saying the provider takes custody of the child from the box.

The actual statute reads, in part:

Emergency medical services provider taking custody of child
Sec. 1. (a) An emergency medical services provider shall, without a court order, take custody of a child who is, or who appears to be,not more than thirty (30) days of age if:
(1) the child is voluntarily left with the provider by the child’s parent; and
(2) the parent does not express an intent to return for the child.
(b) An emergency medical services provider who takes custody of  a child under this section shall perform any act necessary to protect the child’s physical health or safety.
(c) Any person who in good faith voluntarily leaves a child with an emergency medical services provider is not obligated to disclose the parent’s name or the person’s name.

Read the entire safe haven law here

“The question really hinges on what does it mean to give custody to a provider and that’s where the difference lies,” Yvonne Lindgren, an assistant professor at Indiana Tech Law School, said. “It’s not clear from the language of the statute.”

Former prosecutor Michael Loomis agreed.

“When you start wading into it, you see both sides of the issue,” Loomis said.

15 Finds Out asked Loomis and Lindgren to examine the safe haven law and tell us which side of the debate was inline with the law: the Department of Child Services or Safe Haven Baby Boxes.

“I do think both could be argued persuasively the way it’s written. What does it mean to relinquish custody? Does it have to be face-to-face? That’s how DCS is interpreting the law. But, as a law professor, I will say the fact that you put the baby into the box and it closes and it locks and now infant is on interior of building, that’s pretty solid transfer of custody.”

One of the main questions is if a baby box can be considered an emergency medial services provider under the safe haven law, Loomis added.

“The law doesn’t specifically address that issue and it needs to be resolved so there is a clear understanding,” he said.

If a baby box was used and the DCS pursued charges, with the way the law is now, Lindgren said arguments in court could turn to the intent of the law.

“The intent of the safe haven law is to provide an anonymous way to allow people to relinquish infants in a way that encourages them to relinquish them anonymously rather than leave them someplace else and [baby boxes] seem to meet that standard,” she said.

“I think a person could be charged and prosecuted, but I think it’s doubtful they’d be convicted because the neglect statue uses the words knowingly and intentionally. That requires specific intent. When a person is doing just the opposite, trying to relinquish that baby to society to get assistance for that baby, I don’t think that constitutes neglect,” Loomis said. “As the statue is written today, I would not prosecute a person for neglect of a dependent for surrendering a baby to a baby box. I just don’t see evidence of specific intent knowing or intentionally placing that child in danger.”

The safe haven law’s been on the books since 2000 and Loomis and Lindgren said it now falls to lawmakers to clarify it.

“The way it’s written today, there is a legitimate gray area in the law,” Lindgren said. “I don’t think the law is written specifically enough to require an in person hand-off. I think the law needs to be redrafted to be more specific.”

State Senator Travis Holdman told 15 Finds Out that he plans to bring up a baby box discussion in the statehouse, saying “there is a gap in the code that we need to fill and take a look at.”

Despite the Department of Child Services’ criticism and requests to stop the use of baby boxes, there are plans to install two more in central Indiana soon.

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