AN INTERVIEW WITH ERIK L. SMITH: SAFE HAVEN LAWS ARE IRRESPONSIBLE, WRONG, INEFFECTIVE, AND UNCONSTITUTIONAL

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
maddogmarley@worldnet.att.net. 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.

MY TWO DADS: FATHER'S DAY 2005

Like most adoptees I have two dads: Charlie, my adoptive dad and Jack, my birth dad. The last time I saw Charlie alive was on Father’s Day 1976. Two months later he died in the emergency room of congestive heart failure caused by a lifetime of bad habits. I still miss him, and not surprisingly did not fully appreciate him until he was gone.

I first met Jack—in person--four years ago, just before Father’s Day 2001. Jack was never allowed to know about me. I was none of his business, at least according to my birthmother’s family who simply hustled their reckless daughter out of town, and told Jack to take a hike. I think she went to care for a sick aunt. And like Charlie, I don’t always appreciate Jack, as I should.

Charlie was 35 when I was adopted. World War 2 had just finished, and he had worked as a mechanical engineer in a defense plant designing presses and catapults. He was also an officer in the Ohio State Guard (now Ohio National Guard.) where he organized air raid drills. Although he’d attended New York Military Academy and Culver the Navy due to some mysterious jaw problem had turned him down. When I was being adopted, Jack had just turned 18 and was running around post-war China with George Marshall’s Army Advisory Group (later known as the Military Advisory Group- China) where he lived a Radar O’Reilly life (without the dweebishness) with 335 enlisted men and a whopping 700 officers many of whom had been exiled to China due to well…let’s say, actions unbecoming officers, but who the Army couldn’t boot without a scandal. He spent most of his time in Nanking (now Nanjing) and more than once rode a sedan chair to the summer capital 14 miles to the north—while the officers, including Generals, walked to show the countryside that they were neither invaders or snobs. Jack, as a Buck Sergeant did everything from run the port to furnish Colonels with cheap booze. He traveled across the Gobi Desert, where camel caravans still crossed, to help set-up a military attaché post. He spent time in Manila and Shanghai. He was handsome blue-eyed, and blond.

Jack was and is a New Deal Democrat. His father often warned him never bring home a Republican to darken the family door. His hero is FDR. Jack’s wife was a bigwig in the local Democratic Party and once took him to Washington to meet LBJ. Jack loathes the Bushes. He always votes a straight ticket. In China he met Mao, and had High Tea with Madame Chaing kai-chek. He says that if he’d been Chinese in 1948 he’d have been a “goddamned Communist.” Charlie was a generational Republican. His maternal grandfather and other relatives were members of the pre-Lincoln Republican Party. His parents and grandparents entertained US Grant’s son James, William McKinley, and Mark Hanna. No Democrat would ever darken their door. He always voted a straight ticket.

Charlie’s family on his mother’s were Boones as in Daniel. They were Quakers and Garrisonian abolitionists with a secret room in their house to hide slaves escaping into Canada on the Underground Railroad. Jack’s family (including me) reportedly are descended from William Henry Harrison—the president who died from too much liquor and food a month after his inauguration. If true, that makes us related to the original Benjamin Harrison, a Virginia planter and a signer of the Declaration of Independence, who rejected the Constitution. Thomas Jefferson and John Marshall may be peripheral relatives. Both families are older than dirt in the US. I’d be eligible for DAR membership if the DAR let in adoptees.

Jack’s family line was poor by the time he was born. He never went beyond the 8th grade. He worked from the time he was 12 or 13 . His first job was unloading slots for a local gambler. He moved up to driving truck, which he did his entire working life with literally millions of safe driving miles. I worked in trucking for several years. Charlie attended Purdue and belonged to SAE, but never graduated. You didn’t have to back then. He was on the Purdue swim team and summers worked as a lifeguard at the country club. . He spent his life designing presses and things I don’t understand. He’d take me to the plant on Saturday sometimes and the greasy loud machines were fun. Charlie’s family owned banks and ran businesses, but Charlie rejected that kind of life (or rather the Depression rejected it for him) and he spent his life working as a mechanical engineer for the company that his father had helped found and for which he’d served as secretary and treasurer. Both dads remained married. Charlie was married 41 years; Jack for 50. Death ended both marriages. Both dads supported their families with taste and style. And hard work.

Adoption-wise I’m an only child, which is fine with me. A friend of mine says that Jack reminds her of Hunter S. Thompson. Jack has four sons, and he’s a hard act to follow. Since neither Jack nor I are carrying any baggage both of us are perfect. Neither Jack nor I deal well with authority. I’m not sure how Charlie felt about it, but I think he just ignored it as much as one can ignore it.

Jack is a voracious reader. He knows everything except how to keep a checkbook. He once called me up to talk about robber barons. Charlie didn’t keep a checkbook either, but he invested and did his own taxes. He was not a big reader, but he was a mentor to young engineers, some of whom years later told me how important he had been to them in their professional lives.

Jack taught himself several languages, including fluent Chinese (Mandarin? I don’t know). I once saw him hustle a 30 something Chinese woman at the Buffalo airport. English was just fine for Charlie. Jack is a big shot in the Masons, the American Legion, the VFW, and the now defunct Veterans of China-Burma. Charlie’s grandfather ran the Scottish Right in Ohio, but Charlie refused to join, preferring the Elks. Neither dad had any use for church. Jack has never been baptized.

Both dads liked to drink. Charlie joined AA. Jack sits in front of his TV popping a 6-pack and watching the History Channel. I grew up in bars listening to the jukebox (Theresa Brewer was a particular favorite), reading comic books, and hanging out with bleach blond barmaids. Jack takes me to bars where he nurses numerous drinks while I sit next to him with a Bloody Mary watching ESPN. Both dads detested Lawrence Welk. I’m a Welkie.

Both dads have loved me tremendously. Charlie was a constant source of support, though I don’t think either of us would have actually called it that. A little too academic and PC. I have pictures of me as a toddler sitting on his lap while he read to me. Jack supports me, too, though I’d bet the bank he has no grasp of what Bastardette does, but then neither does she. I am more like my two dads than my two moms who were, to be honest, hung up on certain middle class behaviors that continue to elude me.

I wish Charlie and Jack could have known each other, just like I wish my two moms could have known each other. Jack would have fit right in, and he and Charlie could have spent many an hour drinking and hanging out in neighborhood bars. Maybe they would have gone out on the road together. Well, maybe not!

Adoption always seems to me to be a women’s sport. Fathers are almost always left out of the adoption equation—especially birth fathers. I never thought much about what my birthfather would be like until a few years ago, and I most certainly never thought I’d have a Bush-hating, Chinese-speaking Democrat like Jack for a dad. Charlie, unlike the stereotypical post-war distant dad that we hear about, spent a lot of time with me. I think he genuinely enjoyed being a dad. Through his example I learned generosity and fairness. He bought me Little Richard records and taught me big band music and that Republicans need not all be nutbars. I’ve been fortunate to have had not one, but two extraordinarily swell dads with kind and liberal and loving spirits. I wish they were both here today for Father’s Day so I could show them how much I love them both, how important they really are.

LET'S MAKE MORE ADOPTEES: ILLINOIS CHOOSE LIFE

Oh dear! Jim Finnegan, president, Illinois Choose Life, demands his organization's "civil rights under the first and fourteenth amendment, guaranteeing freedom of speech and equal protection under the law" to get his alleged "pro-adoption" Choose Life plate out of the Statehouse and on to the road.

Well, what about the civil rights and equal protection of Illinois adoptees whom Finnegan claims to love so much that he wants to make more of us with his cheap license plate advertising? What about the civil rights of the thousands of adopted adults who are perpetually infantalized and anonymized by Draconian Illinois adoption law that confiscates, seals, and locks away the birth certificates, identities, genealogies, and histories of the state's thousands of adult adoptees? Sorry! In a hierarchy of "civil rights," the rights of adopted adults to their own identities and records trumps the specious right of a small loud band of Biblical Americans to tool around the state with their "pro-adoption" government-approved message tagged to their cars. Of course, this is the same "pro-adoption" crowd that routinely opposes adoptee civil rights in whatever state they drive in. Live adults have never been their strong suit. And we're not so cute either.

Choose Life is not about promoting adoption but promoting newborn relinquishment and filling the coffers of their CPIC (coercive pregnancy indoctrination center--aka "crisis pregnancy center") friends and connections with premium healthy white infants. According to both HB 5883 and SB 1502 funds derived from the sale of Choose Life plates would go to "meeting the physical needs of pregnant women who are committed to placing their children for adoption." (What happens if somebody change her mind? What about women who want to keep their babies? Don't they count?) Even then, the funds don't go directly to these "committed women" but to "agencies" that dole funds out to the "worthy."

At a time when pubic assistance is drastically curtailed and only a minute number mothers willingly place their newborns for adoption, some might accuse Choose Life of bribing mothers out of their newborns--or worse.