11:24 AM MST on Wednesday, April 14, 2004

By Rebecca Taylor, Fox 11 News

A Pima County Superior Court judge has quashed a subpoena in which Arizona's Child Protective Services agency was demanding the identity of a woman who turned her baby over to the "Safe Baby" program in 2003.

Advocates say it's a huge victory for the program, which was designed to save the lives of newborns. At least four young women in Tucson in the 1990's hid their pregnancy and ended up being charged with killing the newborn child.

The Safe Baby Program was implemented in 2001, allowing mothers to give up their parental rights within 72-hours of delivery, by anonymously handing over the child to a healthcare professional without facing criminal prosecution.

But what advocates didn't expect was people delivering a child inside a hospital then claiming the birth under the "Safe Baby" program.

"There have been several cases in hospitals in Tucson," says Tucson Medical Center's Emily Jenkins.

But a spokesperson for CPS says when the legislature enacted "Safe Baby", it only changed statutes dealing with criminal abandonment. It didn't touch statutory obligations of CPS to investigate abandonment cases and work to identify the mother and father.

So the agency says it continues to attempt to locate the parents before putting the newborn up for adoption.

Last September the agency served a subpoena on Tucson Medical Center to learn the identity of an anonymous mother who gave birth there.

But Pima County Superior Court judge Stephen Rubin quashed that subpoena Monday. In his Minute Entry announcing his decision, Judge Rubin says CPS should try to identify the mother through normal means such as publications in newspapers. But he said it was clear the legislature intended for the mother to remain anonymous.

"It had never been tested before, this sort of situation had never been tested, that's what CPS was doing. Where does their responsibility end and this anonymity, this new law begin?" asks State Senator Toni Hellon.

"These are women with no prenatal care and very high risk deliveries It's much safer to deliver in a hospital with immediate pediatric care than it is for them to have it at home or under a park bench or something," says TMC's Emily Jenkins.

The Tucsonans Fox 11 News spoke with agree. "It seems like a certain amount of protection and safety would come from the mother being anonymous," Tucsonan Sarah Fraser said.

Stacy Richard adds, "I just feel that if a mother wants to give her baby up, what business is it of CPS? I mean the baby will be safe in someone's hands with the Safe Baby program and if she's not able to do that, it could be worse."

"The dumpsters, toilets, we need the program," says Tucsonan Tina Duarte.

Judge Rubin has called a hearing on the issue and will listen to both sides again in June.