STATE OF NEW YORK
________________________________________________________________________
7132--A
Cal. No. 1272
2023-2024 Regular Sessions
IN SENATE
May 18, 2023
___________
Introduced by Sens. SALAZAR, BAILEY, BRISPORT, BROUK, CLEARE, FERNANDEZ,
GONZALEZ, HARCKHAM, JACKSON, LIU, MYRIE, RAMOS, RIVERA, SEPULVEDA,
WEBB -- read twice and ordered printed, and when printed to be commit-
ted to the Committee on Crime Victims, Crime and Correction -- recom-
mitted to the Committee on Crime Victims, Crime and Correction in
accordance with Senate Rule 6, sec. 8 -- reported favorably from said
committee, ordered to first and second report, ordered to a third
reading, amended and ordered reprinted, retaining its place in the
order of third reading
AN ACT to amend the correction law, in relation to promoting the health,
safety, and human rights of incarcerated pregnant individuals, incar-
cerated birthing parents of children and their children
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative purpose and findings. People incarcerated in
2 institutions or local correctional facilities face unique health risks
3 during pregnancy, childbirth, postpartum, and early childcare. Lack of
4 appropriate prenatal, obstetric, and postpartum medical care, and appro-
5 priate health and safety measures, can result in serious harm to these
6 incarcerated people and their children. Pregnant and postpartum people
7 who are incarcerated and such person's young children need prenatal,
8 obstetric, and pediatric care, as well as developmentally-appropriate
9 resources provided in a safe, healthy, and nurturing environment. Unless
10 comprehensive and compassionate laws, policies, and practices are in
11 place, the rights and care of pregnant and postpartum people who are
12 incarcerated and such person's young children may be compromised by the
13 conditions of confinement in correctional institutions or facilities.
14 § 2. The section heading of section 611 of the correction law, as
15 amended by chapter 322 of the laws of 2021, is amended to read as
16 follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11258-07-4
S. 7132--A 2
1 [Births to incarcerated individuals of correctional institutions and
2 care of children of incarcerated individuals of correctional insti-
3 tutions] Rights and care of pregnant and postpartum people who are
4 incarcerated and such persons' children.
5 § 3. Subdivisions 2, 3 and 4 of section 611 of the correction law,
6 subdivision 2 as separately amended by chapters 322 and 621 of the laws
7 of 2021, subdivision 3 as amended by chapter 242 of the laws of 1930,
8 and subdivision 4 as amended by chapter 486 of the laws of 2022, are
9 amended and a new subdivision 7 is added to read as follows:
10 2. Pregnant and postpartum people who are incarcerated shall be
11 provided with comprehensive prenatal and perinatal care, including all
12 necessary prenatal screening and diagnostic tests, consultation and
13 treatment, including treatment by specialists, and appropriate medical
14 care after delivery or other pregnancy outcome, including postpartum
15 physical, mental, and reproductive health care, as recommended by the
16 American college of obstetricians and gynecologists. The commissioner
17 may establish rules and regulations relating to conditions in the insti-
18 tution or local correctional facility, treatment and care that shall
19 include, but is not limited to:
20 (a) regularly scheduled obstetric care, beginning in early pregnancy
21 and continuing through the postpartum period. No correction staff or
22 volunteers shall be present during these examinations unless requested
23 by the pregnant or postpartum person or by the medical staff when the
24 situation poses a clear risk of danger to the medical staff or others;
25 (b) medical care during labor and delivery, which shall include care
26 by qualified medical personnel and necessary medical equipment, includ-
27 ing full access to pain management medications when safe;
28 (c) screening for and evidence-based treatment and medication for
29 opioid use disorder, smoking cessation, alcohol use disorder and other
30 substance use disorders as needed with prior written and oral informed
31 consent specific to the test;
32 (d) screening for HIV, hepatitis B, syphilis, chlamydial infection,
33 and Neisseria Gonorrheae, as recommended by the American academy of
34 pediatrics and the American college of obstetricians and gynecologists;
35 (e) counselling access to influenza and Tdap vaccines;
36 (f) screening for mental health concerns and psychological and psychi-
37 atric therapy and treatment as needed, including consultation regarding
38 psychiatric medications and provision to psychiatric medications that
39 are safe during pregnancy;
40 (g) appropriate hydration and nutrition. Such hydration and nutrition
41 shall include the provision of additional portions of food, fresh
42 fruits, vegetables, and vitamins in order to safely deliver a child and
43 breast feed them;
44 (h) safe and appropriate housing and living conditions, including
45 adequate bedding, clothing, and personal hygiene and self-care supplies;
46 (i) privacy with regard to the care of pregnancy- and postpartum-re-
47 lated conditions;
48 (j) regular access to safe and appropriate exercise facilities;
49 (k) prevention from exposure to substances or chemicals that could
50 present a risk of harm to themselves or such person's fetus;
51 (l) reasonable accommodations for sleep, rest, and work requirements;
52 (m) freedom from discrimination with respect to access to services,
53 education or programming, including programming related to early release
54 or sentence-shortening options; and
55 (n) telephonic, video, or in-person consultations with legal counsel
56 of their choice regarding their decisions and appropriate peer and
S. 7132--A 3
1 social support of other incarcerated parents, whether in person, online
2 or via videoconference. Such postpartum people shall also have access to
3 reasonable technology to take and share photos of such person's child.
4 3. A child [so] born [may] to a person who is incarcerated shall be
5 returned with its [mother] birthing parent to the [correctional] insti-
6 tution [in which the mother is confined] or local correctional facility
7 unless the chief medical officer of the [correctional] institution
8 [shall certify that the mother is physically unfit to care for the
9 child, in which case the statement of the said medical officer shall be
10 final] or local correctional facility demonstrates a finding by clear
11 and convincing evidence that such person poses an imminent risk to the
12 health and safety of the child. A child [may] shall have the right to
13 remain in the [correctional] institution or local correctional facility
14 with its [mother for such period as seems desirable for the welfare of
15 such child, but not after it is one year of age, provided, however, if
16 the mother is in a state reformatory and is to be paroled shortly after
17 the child becomes one year of age, such child may remain at the state
18 reformatory until its mother is paroled, but in no case after] birthing
19 parent until the child is eighteen months old, however, if the birthing
20 parent is to be paroled by the time the child becomes twenty-four months
21 of age, such child may remain at the institution or local correctional
22 facility until the birthing parent is paroled. If a pregnant [woman or
23 mother] person or postpartum parent of a child under the age of eighteen
24 months is incarcerated at [a state] an institution or local correctional
25 facility, the department shall inform [her] such person of [her] their
26 ability to apply to any nursery program run by the department and the
27 locality. Any [woman] person confined in [a state] an institution or
28 local correctional facility shall receive notice in writing in a
29 language and manner understandable to [her] them about the requirements
30 of this section upon [her] their admission to [a state] an institution
31 or local correctional facility and again when [she is] they are known to
32 be pregnant. The superintendent or sheriff shall publish notice of the
33 requirements of this section in prominent locations where medical care
34 is provided. [The officer in charge of such institution may cause a
35 child cared for therein with its mother to be removed from the institu-
36 tion at any time before the child is one year of age. He or she shall
37 make provision for a child removed from the institution without its
38 mother or a child born to a woman incarcerated individual who is not
39 returned to the institution with its mother as hereinafter provided. He
40 or she] No child shall be removed from the nursery without the express
41 oral and written consent of the birthing parent or a finding, by clear
42 and convincing evidence, that such person poses an imminent risk to the
43 health and safety of the child and that this risk cannot be mitigated
44 through reasonable efforts on behalf of the institution or local correc-
45 tional facility. The right to counsel and due process shall be afforded
46 to the incarcerated person as well as to the child prior to, or shortly
47 after, such removal and if the finding above is not sustained, the child
48 shall be immediately returned to the care and custody of the person who
49 is incarcerated. The officer in charge of an institution or local
50 correctional facility may, upon proof being furnished by the [father]
51 non-birthing parent or other relatives of [their] such relatives' abili-
52 ty to properly care for and maintain such child, and with the express
53 written and oral consent of the person who is incarcerated and who gave
54 birth to the child within the previous eighteen months, give the child
55 into the care and custody of such [father] non-birthing parent or other
56 relatives, who shall thereafter maintain the same at their own expense.
S. 7132--A 4
1 If it shall appear that such [father] non-birthing parent or other rela-
2 tives are unable to properly care for and maintain such child, such
3 officer shall place the child in the care of the commissioner of public
4 welfare or other officer or board exercising in relation to children the
5 power of a commissioner of public welfare of the county from which such
6 incarcerated individual was committed as a charge upon such county. The
7 officer in charge of the correctional institution shall send to such
8 commissioner, officer or board a report of all information available in
9 regard to the [mother] birthing parent and the child. Such commissioner
10 of public welfare or other officer or board shall care for or place out
11 such child as provided by law in the case of a child becoming dependent
12 upon the county. If it is found that the non-birthing parent or rela-
13 tives are not a suitable placement and the commissioner of public
14 welfare does not have placement for the child then the child may remain
15 in the institution or local correctional facility until the child is
16 thirty months old.
17 [3.] 4. (a) If any [woman] person, committed to any such [correction-
18 al] institution or local correctional facility at the time of such
19 commitment is the [mother] postpartum person of a [nursing] child in
20 [her] such person's care under [one year] eighteen months of age, such
21 child may accompany [her] such person to such institution if [she] such
22 person is physically fit to have the care of such child, subject to the
23 provisions of subdivision [two] three of this section. If any [woman]
24 person committed to any such institution at the time of such commitment
25 is the [mother] birthing parent of, and has under [her] their exclusive
26 care, a child more than [one year] eighteen months of age the justice or
27 magistrate committing such [woman] person shall refer such child to the
28 commissioner of public welfare or other officer or board exercising in
29 relation to children the power of a commissioner of public welfare of
30 the county from which the [woman] person is committed to be cared for as
31 provided by law in the case of a child becoming dependent upon the coun-
32 ty, unless it is found that the non-birthing parent or relatives are not
33 a suitable placement and the commissioner of public welfare does not
34 have placement for the child in which case the child may remain in the
35 institution or local correctional facility until the child is thirty
36 months old. No child shall be removed from the nursery without the
37 express oral and written consent of the person who gave birth or a find-
38 ing, by clear and convincing evidence, that such person poses an immi-
39 nent risk to the health and safety of the child and that this risk
40 cannot be mitigated through reasonable efforts on behalf of the correc-
41 tional institution or facility. The right to counsel and due process
42 shall be afforded to the incarcerated person as well as to the child
43 prior to, or shortly after, such removal and if the finding above is not
44 sustained, the child shall be immediately returned to the care and
45 custody of the person who is incarcerated. The officer in charge of an
46 institution or local correctional facility may, upon proof being
47 furnished by the non-birthing other parent or other relatives of such
48 parent or other relatives' ability to properly care for and maintain
49 such child, and with the express written and oral consent of the person
50 who is incarcerated and who gave birth to the child within the previous
51 eighteen months, give the child into the care and custody of such non-
52 birthing parent or other relatives, who shall thereafter maintain the
53 same at such non-birth parent or other relatives, who shall thereafter
54 maintain the same at such non-birth parent or other relatives' own
55 expense.
S. 7132--A 5
1 (b) Separation or the threat of separation of an incarcerated person
2 who is caring for such person's child under the age of eighteen months
3 in the nursery of the institution or local correctional facility shall
4 never be used as a disciplinary tool or sanction.
5 (c) No person shall care for the child without the express permission
6 of the person who is incarcerated and who gave birth to the child.
7 (d) People who are incarcerated and who are caring for such person's
8 child in the nursery while incarcerated shall have quiet and private
9 sleeping spaces until such person's child is weaned or such child
10 consistently sleeps through the night, whichever occurs later.
11 (e) People who are incarcerated and who have given birth and who are
12 caring for such person's child in the nursery of the institution or
13 local correctional facility shall have timely consultations with pedia-
14 tricians, including in-person consultations.
15 (f) People who are incarcerated and who have given birth and who are
16 caring for such person's child in the nursery of the institution or
17 local correctional facility shall be provided with appropriate over-the-
18 counter medications for such person's child, regardless of whether the
19 birthing parent has consulted with a pediatrician.
20 (g) People who are incarcerated and who have given birth within the
21 previous eighteen months shall be provided with counseling regarding all
22 options open to them, including all rights under this law to postpartum
23 care, to maintain the care and custody of such person's child while
24 incarcerated, all rights of such child to receive pediatric care and a
25 safe, nurturing and developmentally appropriate environment, and alter-
26 native care arrangements for such person's child.
27 (h) Under no circumstances shall a person who has given birth within
28 the prior eighteen months and who is caring for such person's child
29 while incarcerated be subjected to isolation or segregated confinement,
30 with or without such person's child.
31 [4.] 5. Children born to people who are incarcerated and who are cared
32 for in the nursery of the institution or local correctional facility
33 shall have the right to the following:
34 (a) timely and appropriate pediatric care, including all necessary
35 medical and developmental testing, as recommended by the American acade-
36 my of pediatrics;
37 (b) early intervention or other special medical, developmental or
38 educational services when needed, via experts within or outside the
39 facility;
40 (c) a clean, safe and nurturing environment for children, which
41 includes safe and appropriate sleeping arrangements that reduce the risk
42 of sudden infant death syndrome, safe and appropriate playing, eating,
43 and bathing spaces, adequate hygiene and personal care supplies,
44 adequate over-the-counter medication for common conditions such as
45 colds, teething pain, and diaper rash, and daily access to natural
46 light, quiet, and music;
47 (d) full opportunity to bond with such child's birthing parents,
48 including consistent and extensive physical skin-to-skin contact from
49 the moment of birth;
50 (e) healthy nutrition, including, breastfeeding or breast milk that
51 has been pumped, stored and warmed, if such incarcerated person who gave
52 birth so chooses;
53 (f) safe and appropriate clothing and age-appropriate toys and books;
54 (g) a safe place separated from the general incarcerated population;
55 (h) reasonable visiting hours from family and friends, subject to the
56 consent of such person who gave birth; and
S. 7132--A 6
1 (i) time outdoors.
2 6. Upon admitting a [woman] person known to be pregnant, or upon
3 learning of pregnancy status, the chief medical officer of each institu-
4 tion or local correctional facility housing [female] pregnant or post-
5 partum incarcerated individuals, including the medical professional
6 responsible for each local correctional facility housing [female] preg-
7 nant or postpartum incarcerated individuals, or such officer or profes-
8 sional's designee, shall immediately inform such [woman] person of the
9 option of participating in pregnancy counseling services and the right
10 to abortion services.
11 7. Enforcement. (a) The department or the commission shall issue
12 uniform minimum standards regarding procedures and the implementation of
13 this section within one hundred eighty days of the effective date of the
14 chapter of the laws of two thousand twenty-four that amended this
15 section.
16 (b) If an individual who is incarcerated claims that either they or
17 the child in their care have suffered as a result of conduct prohibited
18 under this section or have been denied the rights provided in this
19 section, the provisions of this section shall be enforceable by a
20 proceeding brought pursuant to article seventy-eight of the civil prac-
21 tice law and rules.
22 § 4. Subdivision 33 of section 2 of the correction law, as added by
23 chapter 93 of the laws of 2021, is amended to read as follows:
24 33. "Special populations" means any person: (a) twenty-one years of
25 age or younger; (b) fifty-five years of age or older; (c) with a disa-
26 bility as defined in paragraph (a) of subdivision twenty-one of section
27 two hundred ninety-two of the executive law; or (d) who is pregnant, in
28 the first [eight weeks] three months of the post-partum recovery period
29 after giving birth, or caring for a child in a correctional institution
30 pursuant to [subdivisions two or three of] section six hundred eleven of
31 this chapter.
32 § 5. This act shall take effect immediately.
