Legal and Ethical Support for Newborn Safe Havens - LawNow Magazine

Legal and Ethical Support for Newborn Safe Havens

382NewbornSafehavensIn May 2010, Providence Health Care in Vancouver announced the opening of the first newborn safe haven in Canada at St. Paul’s Hospital.  Four months later, Providence confirmed a healthy baby was dropped off at the hospital, setting off a further round of national and international media attention.   And now this year, following Providence’s lead and with their consultative support, Covenant Health implemented two newborn safe havens at the Misericordia and Grey Nuns Community Hospitals in Edmonton.  Known as Angel Cradles, the safe havens provide a means for parents who are unable or unwilling to care for their newborns to safely and anonymously leave their baby in a hospital bassinet, accessed via a secure, electronically monitored door discreetly located external to the Emergency Departments.  Prompted by clinical experience, and a desire to provide an additional option when real or perceived barriers prevent parents at risk from accessing existing social supports, the Angel Cradles are a practical resource to mitigate tragic outcomes as a result of unsafe abandonment.

Known as Angel Cradles, the safe havens provide a means for parents who are unable or unwilling to care for their newborns, to safely and anonymously leave their baby in a hospital bassinet, accessed via a secure, electronically monitored door discreetly located external to the Emergency Departments. 

Realizing this goal took a great deal of imagination and persistence, including extensive collaboration with provincial authorities and other internal and external stakeholders.  First, from a legal perspective, since neither British Columbia nor Alberta have safe haven legislation (there is currently no safe haven legislation anywhere in Canada) it was important the Angel Cradle program work in concert with existing legislative requirements.  Through detailed planning and candid dialogue we were able to confirm that, if a parent was either unable or unwilling to discharge their legal obligations in providing for the necessities of life, they could intentionally leave the baby at the hospital anonymously, with the caveat that no evidence of abuse or harm to the child was found upon physical examination.  However, we were informed that no blanket claims of legal protection from prosecution could be asserted.  The Angel Cradles had to promote safe abandonment.  Any evidence of harm is automatically reportable to authorities, as we would report clinical findings of abuse involving children at any time. We respect that the Crown must exercise its discretion to determine if it is in the public interest to investigate, lay charges and pursue prosecution if subsequent clinical evidence reveals the child has been harmed, even if left anonymously in the Angel Cradle. Thus, we have been consistent in all our public messaging that we are under no obligation to report or connect child with parent, even if the birth mother presents to our hospitals hours or days after delivery for treatment, provided that the newborn is left safely.

We respect that the Crown must exercise its discretion to determine if it is in the public interest to investigate, lay charges and pursue prosecution if subsequent clinical evidence reveals the child has been harmed, even if left anonymously in the Angel Cradle.

In addition to criminal legislative considerations, we had to ensure that the Angel Cradle program was aligned with other existing legislative frameworks, including various Acts that serve to promote the well being of children and families. Provincial mandates to support families and healthy parenting, open adoption practices, the rights of fathers, and other measures that protect the interests and rights of vulnerable persons must also be respected. In no way is the Angel Cradle intended to work at cross purposes in fulfilling these various legislative obligations.  Our organizations proudly support the wide range of social programs and services available to help parents at risk, and we work closely on a daily basis in connecting people presenting to our hospitals with these exceptional community resources.  What we do maintain, however, is that the Angel Cradle program provides an additional resource to augment the existing safety net.

The World Health Organization has critiqued that newborn safe havens, or baby boxes as they are more commonly known in Europe, contravene the rights of children in knowing their parental history and medical background.  This is not a view shared by the authors. 

The World Health Organization has critiqued that newborn safe havens, or baby boxes as they are more commonly known in Europe, contravene the rights of children in knowing their parental history and medical background.  This is not a view we share.  In fact, we have publicly confirmed our unequivocal support for the rights of children to know their history, but emphasize that such rights are moot if the baby dies as a result of unsafe abandonment.  We argue that the child’s first claim is the right to life, upon which the other rights are contingent.  What we hope is, that  by providing an additional option, a child may at least have a chance to exercise his or her rights in knowing their parental history at some future date, recognizing that even if a baby is safely abandoned, there is nothing that precludes that parent from coming forward later to claim their child.  Our concern is that, in a moment of desperation, for example if the birth mother is labouring alone in an unsafe environment, a potentially drastic choice may be made that could have unalterable tragic consequences for the child.  We certainly support the ideal that a parent can avail themselves of professional support which could lead to parent and child being reconnected later, and options such as Angel Cradle may help bridge that gap.

It is worth noting that during our respective consultation processes we were continuously advised by our clinicians and social workers, who have been personally involved in cases of unsafe abandonment, that the anonymity component of the safe havens is essential to the program’s success.  Clinically, there is still so much we do not understand about why people abandon their babies, but we do know it continues to occur in modern society despite the array of social services available.  Nor do we fully understand the barriers that keep people at risk from reaching out for support, including the documented clinical phenomenon of hidden pregnancies. For some parents, the denial of pregnancy may be so strong that secretly hiding evidence of the baby’s presence is perhaps what makes the anonymity feature of the Angel Cradle’s an accessible option. Clinically, there is still so much we do not understand about why people abandon their babies, but we do know it continues to occur in modern society despite the array of social services available.  It would seem that the originators of “foundling wheels” in the late 12th century Europe, convents of Catholic nuns, understood in a very pragmatic way that anonymity worked in reducing incidents of infanticide.  The foundling wheel concept, on which our modern Angel Cradles are similarly based, allowed for a baby to be discreetly placed in a cylinder outside a wall of convent and then rotated so the child was moved inside.  Once the child was safe the parent would ring a bell to announce the child’s presence before leaving without ever being seen.   The  medieval community appeared to understand the pressures some families experienced in having too many children and their inability to care for them, and the conflicted emotions triggered by contemplating or actually leaving one’s baby, even if done so safely.  Allowing a person to do so discreetly was as much an expression of compassion and support for distraught and conflicted parents as it was a practical step to ensure the baby’s safety.

Along with these legal, social and practical considerations, perhaps the greatest hurdle we continue to face is an ethical and moral one.  We assert that Angel Cradles are not meant to condone a throwaway society in which a child that is no longer wanted can be casually discarded, as was the experience of a live newborn abandoned outside a side door of St. Paul’s Hospital. Without a doubt, abandonment, safely or otherwise, is undesirable.  We argue instead from a harm reduction perspective that safe abandonment is the lesser of two harms.  Better a child be left safely than abandoned in a back alley, public washroom, or garbage bin.  There seems to be growing support for this ethical argument, as we reflect on the shift in public interest and tone of media coverage since Providence Health Care’s announcement four years ago, compared to the coverage that has ensued up to the recent news stories around Covenant Health’s cradles. Without a doubt, abandonment, safely or otherwise, is undesirable.  We argue instead from a harm reduction perspective that safe abandonment is the lesser of two harms.  This shift is significant.  As with any innovative solutions, there is always some resistance expected.  The World Health Organization has been the most vocal but there are others who genuinely question if they may do more harm than good.  We take such concerns seriously and emphasize that no one wants to see a child harmed, or accept it is ok for a pregnant woman to carry or labour alone without any support.  Where the disagreement lies is in the approach.  In the vast majority of cases the existing safety net successfully meets the needs of both baby and mother and must be promoted, as we authors do.  But given that unsafe abandonment still occurs, and the revival of baby boxes in Europe, Asia and now Canada has resulted in safely receiving babies who otherwise may have been discarded elsewhere, we believe morally every plausible and creative option should be seriously considered to reduce the chances of anyone falling through the cracks.  Even if one baby is saved it is worth it.

Despite the legal, practical and social questions raised by Angel Cradle, it seems to have captured the moral imagination of the community as a creative and visible social justice strategy.Despite the legal, practical and social questions raised by Angel Cradle, it seems to have captured the moral imagination of the community as a creative and visible social justice strategy.  As with the foundling wheel predecessors, the Angel Cradle is intended to meet the needs of both baby and parent, who are arguably equally vulnerable.  Along with its practical applications, in many ways the Angel Cradle functions as a symbol for anyone in society who is vulnerable and in need of support.  Perhaps the power of this symbolic gesture accounts for the surge of public interest in this work despite, thankfully, the few babies who would ever need to be placed in it.

 

Authors:

Geoffrey W. Cundiff
Geoffrey W. Cundiff M,D. is a Professor and the Head of Obstetrics & Gynaecology at the University of British Columbia.
 

Thomas D. Maddix
Thomas D. Maddix, CSC, D.Min. is a Consultant with Catholic health care.
 

Karen Macmillan
Karen Macmillan M.N. is the VP Operations, Acute Care at Grey Nuns Community Hospital, Covenant Health.
 

Gordon Self
Gordon Self, D.Min is the Vice President of Mission, Ethics and Spirituality for Covenant Health.
 

Josh Stachniak
Josh Stachniak, LLB is Legal Counsel for Covenant Health.
 


A Publication of CPLEA