N.Y. Correction Law § 611: Births to incarcerated individuals of correctional institutions and care of children of incarcerated individuals of correctional institut...

§ 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 incarcerated individuals, including the medical

professional responsible for each local correctional facility housing

female incarcerated individuals, 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.