Bastardette has once more become distracted by the ways of the world and has not been able to write lately. Her good friend, natural parents advocate Erik Smith has leapt into the lurch and offered us an interview on his views of Safe Haven/Baby Moses Laws. The interview was conducted a few months ago by a student from the University of Nebraska-Omaha
INTERVIEW WITH ERIK L. SMITH — SAFE HAVEN LAW
UNO student interview, April 2005
What do you think of safe haven laws?
I think safe haven laws are irresponsible, wrong, ineffective, and
unconstitutional. I mainly oppose anonymity. I am confident safe haven
laws do not save lives. Most adoption professionals oppose them too because
the laws prey on people’s ignorance of child welfare law and policy.
Consider the following analogy:
A person lets his children starve to death. The accused claims he saw no
other option because he was ashamed to apply for welfare and that his
friends and relatives might find out he was not self-supporting. The
legislature then proposes a law that lets anyone who feels ashamed of using
food stamps get welfare automatically and anonymously because it will
decrease shoplifting and child starvation. If it saves just one life it
will be worth it.
Obviously, we could not pass that law because people would abuse the system
and get welfare when they do not qualify. One would also say that a parent
who cannot put their children ahead of their own self-imposed shame is not
fit to have children and their children should be removed from their
custody. Otherwise, if they let their children starve, they may be
prosecuted. In other words, for a parent to say “If you don’t give me free
food or money anonymously, my children will starve,” is blackmail. So is
saying, “I may dump my child in a trashcan unless the state promises me the
other parent will not get notice and terminates their parental rights
secretly.”
Yet the Safe Haven laws apply this exact reasoning. It is only because the
law concerns newborns, mothers, and “infanticide” that anyone pretends to
see any logic in it. There is no excuse for a parent putting their child in
a dumpster. A parent under duress can telephone the police, children’s
services, or an adoption agency, and the child will be dealt with in easy,
safe, confidential, and more responsible way. No one has ever been
prosecuted for placing their child for adoption.
Why do you feel this way about the laws?
I feel this way for many reasons. One reason is that twelve years ago I had
to search for my own son right after his birth. His mom felt ashamed and
did not want me to know what she had done with him, and she left the state
where I was living. All I had was the state mom was living in and her name.
It took me three months and several thousand dollars to find my child.
She had placed him for adoption while giving no information about the
father. I sent a lawyer to the courthouse in the city where she lived.
Because the court had the mother’s name, I was able to find the proceeding.
My son was then four months old and in an adoptive home. Had mom used a
safe haven, I would never have found him–or at least not nearly as quickly.
My son is now 12 years old, I have parental rights, and we have a good
relationship. But I had to overturn an adoption to do it. It took a year
and a half, with attorney fees at $100,000 for both sides. The adoptive
parents were very hurt, as I was. Most mothers using safe havens will have
the same mentality. They do not intend to kill their child, they just want
a way to keep the father, and others, from knowing. Mothers thwarting
fathers in adoptions is the real epidemic in this country. Often, the
mothers are helped in doing this by their families. I can cite several
recent cases from Ohio alone where this happened. I had one man
e-mail me saying that his girlfriend threatened to use a safe haven if he
tried to assert his rights to the child. He did not know where she was and
did not know what to do. What can he do?
Many fathers do not take such steps, or perhaps care as much. But some
fathers do really care about their children, and those fathers need a way to
locate their newborns so they can defend their parental rights in court.
Safe Haven proponents claim DNA testing cures this. But it doesn’t.
Remember, the non-relinquishing parent (usually a father) does not know the
child has been safe havened (or that he even has a child.) No one can tell
him, because he cannot identify the child, and no one has the mother’s name.
He only knows that his child is “missing.” He takes the DNA test on
nothing but a hope or a “maybe.”
Note also that the U.S. Supreme Court has ruled that a minor seeking an
abortion does not have the constitutional right to anonymity when asking a
court to waive notice of the abortion to her parents. Ohio v. Akron Center
(1990), 497 U.S. 502, at page 513. Safe haven proponents, usually
pro-lifers, support that ruling. But in abortion, neither the father nor
the fetus has a legally protected interest. How can one now claim that one
should have a right to anonymity where the child is born and another parent
does have a legal and constitutionally protected interest? I am against
abortion myself. But I still do not believe that the cure lies in enacting
a law that is the “lesser of two evils.” Such a mentality undermines the
purpose of democracy and the intent of our Constitution–which was to
protect the minority from the wrongful will of the majority.
The following facts are absolutely true:
* Not a single safe haven law passed in the U.S. (that provides anonymity)
limits which parents can use the law. Any parent, married or unmarried,
can, for any arbitrary reason, desert their child anonymously. The only
restrictions are the child’s age and that the child cannot appear abused or
neglected. Nothing requires the parent be under duress, in danger from
others, unwed, or make any kind of statement to that effect. This, of
course, mimics adoption. Thus, safe haven laws are nothing more than
anonymous adoption, which was ruled unconstitutional long ago. Moreover,
parents do not have a constitutional right to anonymity in adoptions. See
Does 1, 2, 3, 4, 5, 6, and 7 v. State, 993 P.2d 822, 836 (Or.App. 1999)
which held: “Because a birth mother has no fundamental right under the
federal constitution to have her child adopted, she also can have no
correlative fundamental right to have her child adopted under circumstances
that guarantee that her identity will not be revealed to the child.”
* The progress in adoption policy, law, and awareness, combined with the
diminishing stigma of children born out of wedlock, has drastically reduced
the number of infants killed or abandoned unsafely. Most of society no
longer sees it as shameful to be pregnant out of wedlock and to place a
child for adoption. This was not true decades ago, when infants were killed
or abandoned in much larger numbers. SH now tries to bring the past back by
encouraging, or feeding into, certain parents’ feelings of shame. The
objective should be to continue promoting temporary and permanent surrender
as non-shameful avenues. For the last thirty years we have done just that,
and many more children have been saved from being killed or abandoned by
those alternatives than will ever be “saved” by safe havens. Anyone who
sees “no other option” but to safe haven their child is simply mentally ill
or a liar looking for an excuse to deny their pregnancy or avoid the other
parent. Effective laws also exist to protect women from abusive fathers.
* Not a single shred of conclusive evidence exists to show that any infant
surrendered to a safe haven was ever in danger of being killed–and
certainly not by anyone other than the parent themselves. As I said to the
UNO newspaper, to consider a parent not killing their own child to be the
same as “saving a life” is a twisted outlook. Yet plenty of evidence exists
showing that the infants surrendered were never in any danger at all. Such
as mothers giving birth in the hospital and then walking out, or claiming
they turned the child into a safe haven because they could not afford to
feed the child. Those persons should be referred to children’s services,
who have programs and procedures set up to help parents.
* Like prostitution, abortion and infanticide have always existed and always
will exist. It is a tribute to our country and to child welfare workers and
policy makers that infanticide is as low as it is–lower than ever
before–because of the acceptance of unwed pregnancies and the available of
safe, responsible alternatives.
Do you have a different way to try to solve/cope with infant abandonment
and infanticide?
Yes. We already have plenty of avenues for safe child relinquishment. One
can surrender their child “temporarily” to an adoption agency. The agency
keeps the child for thirty days, while the parents decide what they want to
do, or whether they can care for the child. The time can be extended if
necessary. The proceeding is confidential, except that both parents must be
given notice if they are known.
A parent can surrender their child “permanently.” This is adoption. If the
mother surrendered the child, then the father must receive notice of the
surrender if he was married to mother. Regarding unwed fathers, many states
have enacted father registries. If the father has registered then he must
be given notice too. The agency searches the registry by the mother’s
name–which the father listed with his name. No one else is given notice of
the adoption proceeding and the agency does not advertise in the newspaper.
The proceeding is confidential and not open to public view. A parent who is
overwhelmed, etc., can also call the police, hospital, or fire station, who
can then contact children services, or give the parent the number for
children services. This is the responsible way to treat children of any age
where a parent feels overwhelmed or does not want the child, etc. These
options are available right now.
Also, though technically illegal, a parent can drop their newborn off at a
hospital and then walk out. As long as the child is not harmed, prosecutors
never prosecute. According to articles I have read, hundreds of babies are
abandoned this way every year. Yet try to find even one case in the last
thirty years where a mother was prosecuted for doing this when the child was
unharmed.
Why do you say that you tend to argue from a “legal” viewpoint?
Unlike others who oppose safe havens, I argue about why the law is
unconstitutional, instead of why it’s just “bad” law. I work in the legal
profession as a paralegal, and write adoption and juvenile law articles
regularly. See www.adoption.about.com or www.ohiofamilylaw.net. I have
also had articles published in Midwifery Today and Ohio Lawyer.
Where did/do you get information about safe haven laws?
I go right to the statutes. Because I live in Ohio, I focus mainly on the
Ohio safe haven law (called the “Deserted Child Under 72 Hours Old Act.”) I
also have read the Evan B. Donaldson report on safe havens and I am friends
with Marley Greiner, the executive chair of Bastard Nation, an adoptee
rights group. Bastard Nation is the most outspoken critic of safe haven
laws. Marley sends me a weekly news bulletin on all that’s happening
regarding safe havens around the country. You can contact her at
[email protected]. The latest news is that Idaho and New Mexico
have considered amending the anonymity provision of their safe haven laws
because anonymity conflicts with the Indian Child Welfare Act. I have
argued this fact for the last two years. A couple of years ago, the
governor of Hawaii vetoed their proposed safe haven law. The governor cited
all sorts of problems with it.
Erik L. Smith
BIO
Erik Smith has a bachelor’s degree in Psychology from Cal State Univ.
Bakersfield, a master’s degree in Human Factors Psychology from the
University of South Dakota, and a degree in Swedish Language from the
University of Uppsala (Kursverksamheten 1982.)
In 1993, Mr. Smith was the natural father in a contested adoption, similar
to the “Baby Jessica” case and which lasted a year and a half. After the
litigation, Mr. Smith began studying law. He is now a law clerk for the
Manring & Farrell Law Firm in Columbus, Ohio and an independent legal
researcher for family law and personal injury attorneys. Mr. Smith has also
worked as a Swedish language translator, foreign book reporter, and as a
guest researcher for the Swedish government.
His publications include:
The Ohio Putative Father Registry–The Basics. Ohio Lawyer. (March 2005)
Paralegal Debunks Response to Safe Haven Report. Bastard Quarterly, Vol. 6,
Iss.1: Fall 2003.
Midwifery and the Constitution, Midwifery Today. Issue 65 Spring 2003
Understanding the Legal System. From Calling to Courtroom. 68 pp.and Midwivestrial June 04.
UNWED FATHERS: Preventing your infant child from being adopted without your
consent. Adoption.com April 2004.
What Birthfathers Don’t Know Hurts Everyone. Adoption.com. April 2004.
National Directory of Putative Father Registries, July 11, 2003, Adoption GuideSite About.com
The Ohio Putative Father Registry–The What? July 2, 2003, Originally
published on the Adoption GuideSite at About.com.