How Safe Haven Laws Fail to Protect Children and Parents

The Alabama Senate recently passed a bill that expands Safe Haven Laws, which permit the surrender of newborns at designated sites like fire stations and hospitals, to allow the use of “baby boxes” across the state. Supporters argue that these “baby boxes,” which look like mail slots equipped with cushions and alarms inside, offer safer options for surrendering an infant than the traditional drop-off sites because they offer more anonymity and, therefore, decrease the chances of unsafe abandonment or infanticide. As Lee Marshall, founder of the local foster care nonprofit Kids to Love, told local news station WSFA, “You look at women now not having the choice to have an abortion, we want to give them another choice if they choose to carry that baby full term to be able to place that baby in a box, if they still choose not to parent.” The boxes will be installed in fire stations near college campuses throughout the state. By installing such boxes, Alabama joins seven states in the South and Midwest, where a total of 145 baby boxes are currently installed (though Safe Haven Laws currently exist in all fifty states).

Since their rapid adoption in the early 2000s, Safe Haven Laws have enjoyed bipartisan acceptance nationwide. Yet, as the Alabama law makes clear, these laws also reflect the anti-abortion movement’s emphasis on adoption as an alternative to abortion and the ways anti-abortion “culture of life” rhetoric, which blurs distinctions between pregnancy and motherhood and fetus and child, has become mainstream enough to seem a relatively uncontroversial framing for these laws. Marshall’s quote above demonstrates this slippage. She argues that baby boxes offer women “another choice” than abortion “if they still choose not to parent” [emphasis mine] after birth, in which the desire to abort during pregnancy and the choice to surrender an infant are both issues of parenting, rather than two distinct yet interconnected experiences with their own set of physical, social, and economic concerns.^[1] In every state, Safe Haven Laws, as they’re currently construed, prevent us from looking beyond the pro-life/pro-choice debate to consider ways of addressing unwanted pregnancy, infant abandonment, and infanticide that respect and care for both the birthing parent and the child.

While there is no systematic data collection, the National Safe Haven Alliance estimates that about 4,000 babies have been left at Safe Haven sites across the country since their inception. The first Safe Haven Law was enacted in Texas in 1999. Known colloquially as the “Baby Moses Law,” it purported to help “mothers in crisis” safely surrender their infants. Though the specifics of each law vary by state, they all designate a variety of safe surrender locations, including police stations and hospitals, where a parent can leave their newborn in the care of the state anonymously and without legal consequence. After a certain period, usually a couple of days, their parental rights are terminated, and the child is formally placed into state custody.

After the first Safe Haven Law passed in Texas, other state legislatures were able to get similar laws passed between 1999 and 2008, often with bipartisan support.^[2] In North Carolina, for example, the bill was first proposed by a pro-choice representative and supported by the local chapter of Planned Parenthood.^[3] Discourses surrounding these laws focused on rare but tragic cases of infant death resulting from abandonment, and the rhetoric emphasized beliefs in the sacredness of life.^[4] As legal scholar Carol Sanger has argued, Safe Haven Laws have successfully built upon a foundation of anti-abortion “culture of life” ideology and rhetoric, which has worked to blur the distinction between pregnancy and motherhood, fetus and child, and abortion and infanticide in popular culture.^[5] Safe Haven Laws are positioned as the obvious solution to help a “mother in crisis” make the best choice for “her child.”^[6] Anti-abortion activists and lawmakers frequently frame infant surrender and adoption as a functionally comparable yet morally superior alternative to abortion. Most recently, during oral arguments in the Dobbs v. Jackson Health Organization case, Justice Amy Coney Barrett claimed that existing Safe Haven Laws allow women to avoid “the burdens of parenting.” The leaked and final decision similarly cited these laws among the arguments for opposing Roe v. Wade. In addition to the politically loaded term “choice,” anti-abortion activists and lawmakers may prefer to talk about “options” and “potentials.” Regardless of terminology, the point remains the same – the anti-abortion movement is touting Safe Haven Laws and the surrender of children to the state as a moral alternative to abortion in a post-Roe world.

In Alabama, proponents of the bill to expand Safe Haven Laws emphasized its direct connection to the fall of Roe v. Wade. As Alabama Department of Human Resources Nancy Bruckner told AL.com, “Being a pro-life state there needed to be a next step. We’re encouraging these mothers, don’t abort your baby, have your baby.” Rep. Donna Givens, the bill’s sponsor, explained: “Number one and most important, saving baby’s lives. Number two, it’s saving the mother from making the mistake of her life that she will regret for the rest of her life. And number three, it’s putting a baby in these loving couple’s arms that desperately wants a baby.”

These arguments are flawed in several ways. Issues of pregnancy and childbirth should be understood separately from questions of parenting. The idea that these laws offer women choices is particularly galling considering the fall of Roe and the narrowing of options for those who are pregnant (though it is vital to remember that even before the Dobbs decision, access to reproductive care was limited or inaccessible for many people in this country). And as feminist scholar Laury Oaks has shown, Safe Haven Laws create a good mother/bad mother dichotomy in which parents who do not have access to social and economic resources and safety can “do the right thing” by relinquishing their parental rights. Within this framework, birthing parents can avoid abortion and infant abandonment by performing a final, absolving act of motherly love. This supposed selflessness is thought to unburden a mother in crisis from parenthood. This claim assumes that the experience of pregnancy, birth, and surrender will leave no lingering emotional or physical consequences on the birthing person.^[7]

The wide acceptance of Safe Haven Laws for over twenty years shows us what can be lost in a binary pro-choice/anti-abortion debate that does not attend to the fuller context of reproductive justice. Because the discourse around Safe Haven Laws focuses on “mothers in crisis” and their infants, not pregnant people or fetuses, they appear to avoid the issue of abortion entirely, making them easy opportunities for bipartisan collaboration. Yet, according to Loretta Ross and Rickie Solinger, reproductive justice has three primary principles: 1) the right not to have a child, 2) the right to have a child, and 3) the right to parent children in safe and healthy environments.^[8] These laws fail to provide reproductive justice support to pregnant people and distract us from finding more equitable and just solutions.

Safe Haven Laws offer a narrow solution to the problem of unwanted pregnancies. They do not address root causes, nor do they ensure the safety and well-being of either the birthing parent or the surrendered infant. And while the specifics of Safe Haven Laws vary by state – including time limits and age restrictions – they all share the same critical omissions: These laws do nothing to prevent unwanted pregnancies, provide support or resources for victims of domestic violence or assault, or ensure access to contraception or abortion services for those who do not wish to be pregnant. They don’t offer medical care for pregnant people who cannot afford the costs of pregnancy or childrearing, nor do they offer resources for pregnant people who wish to parent their children but fear they can’t due to lack of resources, safety, or employment. Further, they don’t account for the emotional and psychological toll of infant surrender and adoption on either the parent or the child. Even though these laws putatively prioritize the child, they do nothing to ensure that the children involved will find themselves in a safe and caring environment as they grow.^[9]

Scholars and reproductive justice activists have attempted to draw attention to these issues for decades. Scholars, for example, have challenged the laws based on their vagueness and lack of efficacy or demographic data, which makes it impossible to determine whether Safe Haven sites are disproportionately used by any particular racial, ethnic, or socioeconomic group. Activists on Native American reservations have criticized Safe Haven Laws as a violation of the Indian Child Welfare Act (ICWA), which provides tribes the federal right to participate in child custody proceedings involving Indian children and that extended family or adoptive parents from within the tribe should be prioritized first.^[10] And reproductive justice advocates have pointed to the ways Safe Haven Laws fail to address the physical and mental health needs of the birthing people and infants involved in Safe Haven surrenders.

The expansion of Safe Haven Laws in Alabama is just one iteration of anti-abortion activists and lawmakers normalizing anti-abortion ideology through “child-saving” and “right to life” rhetoric. In the wake of Dobbs, it’s essential to recognize these strategies for what they are and to fight for policies that prioritize reproductive justice alongside legal access to abortion.

Jamie Marsella

Jamie Marsella is a PhD candidate at Harvard University. Her work focuses on race and gender in public health and medicine, with a particular focus on how racial science and religion have influenced women and children’s health.

• Jamie Marsella

  https://nursingclio.org/author/jamie-marsella/

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