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This entry was published on 2022-03-18
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SECTION 611
Births to incarcerated individuals of correctional institutions and care of children of incarcerated individuals of correctional institut...
Correction (COR) CHAPTER 43, ARTICLE 22
§ 611. Births to incarcerated individuals of correctional institutions
and care of children of incarcerated individuals of correctional
institutions. 1. (a) If a woman confined in any institution or local
correctional facility be pregnant and about to give birth to a child,
the superintendent or sheriff in charge of such institution or facility,
a reasonable time before the anticipated birth of such child, shall
cause such woman to be removed from such institution or facility and
provided with comfortable accommodations, maintenance and medical care
elsewhere, under such supervision and safeguards to prevent her escape
from custody as the superintendent or sheriff or his or her designee may
determine. No restraints of any kind shall be used during transport of
such woman, a woman who is known to be pregnant by correctional
personnel or personnel providing medical services to the institution or
local correctional facility, or a woman within eight weeks after
delivery or pregnancy outcome, absent extraordinary circumstances in
which:

i. the superintendent or sheriff or his or her designee in
consultation with the medical professional responsible for the
institution has made an individualized determination that restraints are
necessary to prevent such woman from injuring herself or medical or
correctional personnel or others and cannot reasonably be restrained by
other means, including the use of additional personnel; or

ii. the correctional personnel directly responsible for the transport
of such a woman determine that an emergency has arisen in which
restraints are necessary because the woman poses an immediate risk of
serious injury to herself or medical or correctional personnel or others
and cannot reasonably be restrained by other means.

(b) If a determination has been made pursuant to subparagraph i or ii
of paragraph (a) of this subdivision that extraordinary circumstances
exist then restraints shall be limited to wrist restraints in front of
the body. The superintendent or sheriff or his or her designee pursuant
to subparagraph i of paragraph (a) of this subdivision or correctional
personnel pursuant to subparagraph ii of paragraph (a) of this
subdivision shall document in writing the facts upon which the finding
of extraordinary circumstances were based within five days of the use of
such restraints and shall also document the type of restraints used and
the length of time such restraints were used.

(c) No restraints of any kind shall be used when such woman is in
labor, admitted to a hospital, institution or clinic for delivery, or
recovering after giving birth. Any such personnel as may be necessary to
supervise the woman during transport to and from and during her stay at
the hospital, institution or clinic shall be provided to ensure adequate
care, custody and control of the woman, except that no correctional
staff shall be present in the delivery room during the birth of a baby
unless requested by the medical staff supervising such delivery or by
the woman giving birth. The woman shall be permitted to have at least
one support person of her choosing accompany her in the delivery room
and when such woman is in labor and recovering after giving birth. A
support person shall not need to have visited the woman at a
correctional facility prior to serving as a support person. A person may
not be denied eligibility to serve as a support person solely on the
basis of a past criminal conviction or that such person is on probation,
conditional release, parole or post release supervision. Any decision by
an agency to deny a woman's request to have a specific person serve as a
support person shall be made with reasons specified in writing within
five days of her request and promptly provided to the woman. A support
person shall be notified immediately after such woman goes into labor,
or immediately after a caesarean section or termination is scheduled. If
available, a doula, midwife or other birthing support specialist may
also assist during labor and delivery in addition to at least one
support person of the woman's choosing. Any woman confined in a state or
local correctional facility shall receive notice in writing in a
language and manner understandable to her about the requirements of this
section upon her admission to such state or local correctional facility
and again when she is known to be pregnant. The superintendent or
sheriff shall publish notice of the requirements of this section in
prominent locations where medical care is provided. The superintendent
or sheriff or his or her designee shall cause such woman to be subject
to return to such institution or local correctional facility as soon
after the birth of her child as the state of her health will permit as
determined by the medical professional responsible for the care of such
woman. If such woman is confined in a local correctional facility, the
expense of such accommodation, maintenance and medical care shall be
paid by such woman or her relatives or from any available funds of the
local correctional facility and if not available from such sources,
shall be a charge upon the county, city or town in which is located the
court from which such incarcerated individual was committed to such
local correctional facility. If such woman is confined in any
institution under the control of the department, the expense of such
accommodation, maintenance and medical care shall be paid by such woman
or her relatives and if not available from such sources, such
maintenance and medical care shall be paid by the state. In cases where
payment of such accommodations, maintenance and medical care is assumed
by the county, city or town from which such incarcerated individual was
committed the payor shall make payment by issuing payment instrument in
favor of the agency or individual that provided such accommodations and
services, after certification has been made by the head of the
institution to which the incarcerated individual was legally confined,
that the charges for such accommodations, maintenance and medical care
were necessary and are just, and that the institution has no available
funds for such purpose.

(d) Any woman confined in an institution or local correctional
facility shall receive notice in writing in a language and manner
understandable to her about the requirements of this section upon her
admission to an institution or local correctional facility and again
when she is known to be pregnant. The superintendent or sheriff shall
publish notice of the requirements of this section in prominent
locations where medical care is provided. The department and the sheriff
shall provide annual training on provisions of this section to all
correctional personnel who are involved in the transportation,
supervision or medical care of incarcerated women.

(e) The department shall report annually to the governor, the
temporary president of the senate, the minority leader of the senate,
the speaker of the assembly, the minority leader of the assembly, the
chairperson of the senate crime victims, crime and correction committee
and the chairperson of the assembly correction committee concerning
every use of restraints on a woman under this section, including the
reason such restraint was used, the type of restraint used and the
length of time such restraint was used pursuant to paragraph (b) of this
subdivision, but shall exclude individual identifying information. The
sheriff of each county shall report, in a form and manner prescribed by
the commission, every use of restraints on a woman under this section,
including the reason such restraint was used, the type of restraint used
and the length of time such restraint was used pursuant to paragraph (b)
of this subdivision, annually to the commission. The commission shall
include such information in its annual report pursuant to section
forty-five of this chapter, but shall exclude identifying information
from such report. Reports required by this section shall be posted on
the websites maintained by the department and the commission.

2. A child so born may be returned with its mother to the correctional
institution in which the mother is confined unless the chief medical
officer of the correctional institution shall certify that the mother is
physically unfit to care for the child, in which case the statement of
the said medical officer shall be final. A child may remain in the
correctional institution with its mother for such period as seems
desirable for the welfare of such child, but not after it is one year of
age, provided, however, if the mother is in a state reformatory and is
to be paroled shortly after the child becomes one year of age, such
child may remain at the state reformatory until its mother is paroled,
but in no case after the child is eighteen months old. If a pregnant
woman or mother of a child under the age of eighteen months is
incarcerated at a state or local correctional facility, the department
shall inform her of her ability to apply to any nursery program run by
the department and the locality. Any woman confined in a state or local
correctional facility shall receive notice in writing in a language and
manner understandable to her about the requirements of this section upon
her admission to a state or local correctional facility and again when
she is known to be pregnant. The superintendent or sheriff shall publish
notice of the requirements of this section in prominent locations where
medical care is provided. The officer in charge of such institution may
cause a child cared for therein with its mother to be removed from the
institution at any time before the child is one year of age. He or she
shall make provision for a child removed from the institution without
its mother or a child born to a woman incarcerated individual who is not
returned to the institution with its mother as hereinafter provided. He
or she may, upon proof being furnished by the father or other relatives
of their ability to properly care for and maintain such child, give the
child into the care and custody of such father or other relatives, who
shall thereafter maintain the same at their own expense. If it shall
appear that such father or other relatives are unable to properly care
for and maintain such child, such officer shall place the child in the
care of the commissioner of public welfare or other officer or board
exercising in relation to children the power of a commissioner of public
welfare of the county from which such incarcerated individual was
committed as a charge upon such county. The officer in charge of the
correctional institution shall send to such commissioner, officer or
board a report of all information available in regard to the mother and
the child. Such commissioner of public welfare or other officer or board
shall care for or place out such child as provided by law in the case of
a child becoming dependent upon the county.

3. If any woman, committed to any such correctional institution at the
time of such commitment is the mother of a nursing child in her care
under one year of age, such child may accompany her to such institution
if she is physically fit to have the care of such child, subject to the
provisions of subdivision two of this section. If any woman committed to
any such institution at the time of such commitment is the mother of and
has under her exclusive care a child more than one year of age the
justice or magistrate committing such woman shall refer such child to
the commissioner of public welfare or other officer or board exercising
in relation to children the power of a commissioner of public welfare of
the county from which the woman is committed to be cared for as provided
by law in the case of a child becoming dependent upon the county.

4. Upon admitting a woman known to be pregnant, or upon learning of
pregnancy status, the chief medical officer of each correctional
facility housing female inmates, including the medical professional
responsible for each local correctional facility housing female inmates,
or such officer or professional's designee, shall immediately inform
such woman of the option of participating in pregnancy counseling
services and the right to abortion services.