Childbirth Protection Act Exposed

The Childbirth Protection Act was considered by ALEC's Public Safety and Elections Task Force at the 2010 States and Nation Policy Summit on December 2, 2010. This bill was part of the ALEC task force agenda between 2010 and 2012, but due to incomplete information, it is not known if the bill passed in a vote by legislators and lobbyists at ALEC task force meetings, if ALEC sought to distance itself from the bill as the public increased scrutiny of its pay-to-play activities, or if key operative language from the bill has been introduced by an ALEC legislator in a state legislature in the ensuing period or became binding law.

ALEC Draft Bill Text

Summary

Relating to use of restraints on pregnant inmates, defendants and detainees who are in labor, delivering a baby or in post-partum recovery; prohibiting such use except under certain circumstances; and allowing for the presence of medical or infirmary staff during post-partum strip search upon return to prison, jail or detention facility.

Model Legislation

{Title, enacting clause, etc.}

Section 1. {Title.} This Act may be cited as the “Childbirth Protection Act”

Section 2. {Pregnancy Testing of Female Inmates}

(A) An adult or juvenile correctional facility, detention center or local jail shall test all women upon entry for pregnancy.

Section 3. {Restraints on Pregnant Prisoners}

(A) An adult or juvenile correctional facility, detention center or local jail shall use the least restrictive restraints necessary when the facility has actual or constructive knowledge that an inmate, defendant or detainee is in the second or third trimester of pregnancy.

(B) No restraints of any kind shall be used on an inmate, defendant or detainee who is in labor, delivering a baby or in post-partum recovery unless there is prior documentation by a medical or mental health professional providing compelling ground to believe that the inmate presents:

(1) An immediate and serious threat of harm to herself, to the medical staff or to others; or

(2) A substantial flight risk that cannot reasonably be contained by other means.

(C) If an inmate, defendant or detainee in labor or who is delivering her baby must be restrained, the least restrictive measure necessary to ensure safety and security shall be used; and

(D)The corrections official shall make written findings within 10 days as to the extraordinary circumstances that dictated the use of restraints. These findings shall be kept on file by the correction institution for at least five (5) years and be made available for public inspection, except that no individually identifying information of any inmate, defendant or detainee shall be made public without the inmate, defendant or detainee’s prior written consent.

(E) Under no circumstances shall leg or waist restraints be used on any inmate, defendant or detainee who is in labor or delivery.

Section 3. {Post-partum Strip Searches}

(A)Upon return to a correctional facility, an inmate, defendant or detainee who has given birth shall have the option of having a member of the facility’s medical or infirmary staff be present during her strip-search to ensure that the strip-search is done in a way that neither increases her risk for infection or causes additional physical pain or discomfort.

Section 4. {Severability clause.}

Section 5. {Repealer clause.}

Section 6. {Effective date.}