• Kyle Persaud

Can a Hospital Keep Your Baby against Your Will?

Some hospitals have refused to let parents take their babies home – or see their babies – because of COVID concerns. This is of questionable legality.


· The hospital personnel may go to prison for kidnapping;

· Parents may file a writ of habeas corpus against the hospital;

· Parents may sue the hospitals for false imprisonment.


New York magazine reports that, around the country, hospitals have prevented parents from taking their newborn babies home with them, because of concerns over COVID. In some cases, the hospital would not let parents who had COVID, or were suspected of having COVID, take their babies home. In other cases, hospitals did not allow parents who had COVID, or were suspected of having COVID, to see or hold their babies.

NYU Langone Hospital admitted that they required all visitors to their hospital, to present evidence of a COVID vaccine, or a negative COVID test within the last 72 hours, or the visitor would not be allowed inside the hospital. There was no exception for parents of newborns. So, NYU Langone is denying parents access to their newborns if the parents do not have a COVID vaccine or a negative COVID test.


As a lawyer, this got me thinking: Is this behavior, of hospitals, legal?


Can a Hospital Legally Hold Your Baby?


There are a number of legal theories, which would indicate that hospitals may not legally prevent parents from taking their babies home. The most important laws which would prevent hospitals from withholding parents from their children, are the law against kidnapping and the law against false imprisonment.


Because there are reports of hospitals keeping parents from their children nationwide, I’ll discuss this in the context of the law of Oklahoma, where I practice. I’ll also link to website that describes the laws of kidnapping and false imprisonment in other states. The laws of false imprisonment and kidnapping are similar in most U.S. states, but they are not identical.


Oklahoma law


Kidnapping


The Oklahoma statute on kidnapping states:


Any person who, without lawful authority, seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away another, with intent, either:
1. To cause such other person to be confined or imprisoned in this state against the will of the other person; or
shall be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not exceeding twenty (20) years. Upon any trial for a violation of this section, the consent thereto of the person kidnapped or confined, shall not be a defense, unless it appears satisfactorily to the jury, that such person was above the age of twelve (12) years, and that such consent was not extorted by threat, or by duress.”

Under this definition, if a hospital confined a newborn, and did not return the child to his parents upon the parents’ request, the hospital personnel involved would be guilty of kidnapping, and punishable by up to 20 years in prison.


Kidnapping is a crime, and only the district attorney may prosecute someone for a crime. A private individual, such as a parent, may not bring a criminal prosecution.

So, in Oklahoma if a hospital had kidnapped your child, your remedy would be to call the police. The police could then arrest the hospital personnel who kidnapped your child.


False imprisonment


In Oklahoma, the state supreme court holds that false imprisonment "consists in the unlawful restraint against his will of an individual's personal liberty or freedom of locomotion." S.H. Kress & Co. v. Bradshaw, 1940 OK 70. In Kress, the Court further explained, “In this phrase the word 'false' seems to be exactly synonymous with 'unlawful.'”


Thus, it would appear that, if a hospital secreted a newborn child away from her parents, the hospital would be guilty of false imprisonment.


False imprisonment is a civil wrong. (To see the difference between a civil wrong and a crime, click on my post, “Civil Law vs. Criminal Law: Know the Difference.” A private person may bring a lawsuit against someone for a civil wrong. So, you can sue a hospital for falsely imprisoning your baby.


There are two ways to sue a hospital for false imprisonment: 1) by filing for an emergency writ of habeas corpus, and 2) by suing for money damages for false imprisonment. I’ll discuss both of these remedies:


1. Emergency writ of habeas corpus.


Oklahoma law on habeas corpus says, “Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to enquire into the cause of the restraint, and shall be delivered therefrom when illegal.” The law further states: “Writ of habeas corpus shall be granted in favor of parents, guardians, masters, husbands and wives; and to enforce the rights and for the protection of infants and insane persons.”

Thus, a parent can file a writ of habeas corpus, if someone has unlawfully detained her child. The statute further says, “Writs of habeas corpus may be granted by any court of record in term time, or by a judge of any such court, either in term or vacation; and upon application the writ shall be granted without delay." So, if a hospital won’t release your child, you can file for an emergency writ of habeas corpus.


If you file for a writ of habeas corpus on behalf of your child, and the judge grants the writ, the sheriff will serve the writ on the person illegally holding your child. The statute then says,


“The writ shall be directed to the officer or party having the person under restraint, commanding him to have such person before the court, or judge, at such time and place as the court or judge shall direct, to do and receive what shall be ordered concerning him and have then and there the writ.”

The statute says that when the sheriff serves the writ,


“The … person to whom the writ is directed shall make immediate return thereof, and if he neglect or refuse, after due service, to make return, or shall refuse or neglect to obey the writ by producing the party named therein, and no sufficient excuse be shown for such neglect or refusal, the court shall enforce obedience by attachment.”

So, under this statute, if a hospital is illegally holding your child, you may go to a judge and request an emergency writ of habeas corpus. If the judge grants your request, then the judge will order the hospital to produce your child.


2. Suing for money damages for false imprisonment.


In addition to filing for a writ of habeas corpus, you may also sue the hospital for money damages for false imprisonment. If the judge or jury finds that the hospital is liable, the hospital will have to pay you money damages to compensate you for holding your child.

If a hospital is holding your child, the threat of a lawsuit for money damages, might encourage the hospital to release your child.


Other state laws on kidnapping and false imprisonment


To see a list of laws on kidnapping in other states, click here.


To see a list of laws on false imprisonment in other states, click here.


Will the police and the courts actually help you?


Around the country, some government agencies have been reluctant to intervene against entities who overstep their authority because of COVID concerns. However, other courts, and government agencies have been willing to intervene. So, while it’s not certain what the police – or a judge – will do if a hospital kidnaps your child due to COVID, you should not accept it if a hospital won’t let you see your child, or take your child home.


The hospital will also be uncertain of what the government will do. (They may not admit they’re uncertain what the government will do, but likely, they are uncertain.) So, a hospital may be afraid to clamp down on you, if you indicate that you are willing to challenge their tyrannical authority. In an earlier post on COVID restrictions, I quoted historian Milton Gaither, who wrote, “bureaucracies tend to prefer accommodation to confrontation,” that bureaucrats’ “most effective weapon is bluffing”, and that when citizens “refuse … to be pushed around and threatened legal action, they usually g[e]t their way.”


Rev. Jim Garlow described hospitals’ refusing to release newborns to their parents as “the ultimate despotic act.” If a hospital kidnaps your child (and the law says it is kidnapping) let the hospital know that you will not take it sitting down.

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