HOUSE OF REPRESENTATIVES	H.B. NO.	1444
TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to born alive infants.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that the State of Hawaii has a paramount interest in protecting all human life, and if an attempted abortion results in the live birth of an infant, the infant is a legal person for all purposes under the laws of this State.  Without proper legal protection, newly born infants who have survived attempted abortions may be denied appropriate life-saving or life-sustaining medical care and treatment and be left to die.

     The legislature further finds that protecting an infant whose live birth occurred as the result of an attempted abortion is not an infringement on a woman's right to choose or obtain an abortion of a nonviable fetus, or an abortion that is necessary to protect the life or health of the mother.

     The purpose of this bill is to ensure the protection and promotion of the health and well-being of all infants born alive in the State, to mandate that healthcare providers give medically appropriate and reasonable life-saving and life-sustaining medical care and treatment to all born alive infants and to provide penalties for failure to provide medically appropriate and reasonable life-saving and life-sustaining medical care and treatment to all born alive infants.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

bORN ALIVE INFANT PROTECTION ACT

     §    -1   Definitions.  As used in this chapter:

     "Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child.  Such use, prescription, or means is not an abortion if done with the intent to:

     (1)  Save the life or preserve the health of the unborn child;

     (2)  Remove a dead unborn child caused by spontaneous abortion; or

     (3)  Remove an ectopic pregnancy.

     "Born alive" or "live birth" means the complete expulsion or extraction of an infant from his or her mother, regardless of the state of gestational development, that, after expulsion or extraction, whether or not the umbilical cord has been cut or the placenta is attached, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion, shows any evidence of life, including, but not limited to, one or more of the following:

     (1)  Breathing;

     (2)  A heartbeat;

     (3)  Umbilical cord pulsation; or

     (4)  Definite movement of voluntary muscles.

     "Consent" means the voluntary agreement or acquiescence by a person of age and with the requisite mental capacity who is not under duress or coercion and who has knowledge or understanding of the act or action to which he or she has agreed or acquiesced.

     "Facility" or "medical facility" means any public or private hospital, clinic, center, medical school, medical training institution, healthcare facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center, or other institution or location wherein medical care is provided to any person.

     "Infant" means a child of the species homo sapiens who has been completely expulsed or extracted from his or her mother, regardless of the stage of gestational development, until the age of thirty days post birth.

     "Infanticide" means any deliberate act that

     (1)  Is intended to kill an infant who has been born alive; and

     (2)  That does kill such infant.

     "Physician" means a person licensed to practice medicine in the State of Hawaii.  This term includes medical doctors and doctors of osteopathy.

     "Premature" or "preterm" means occurring prior to the thirty-seventh week of gestation.

     §    -2   Requirements and responsibilities.  (a) A person shall not deny or deprive an infant of nourishment with the intent to cause or allow the death of the infant for any reason, including, but not limited to:

     (1)  The infant was born with a handicap;

     (2)  The infant is not wanted by the parent(s) or guardian(s); or

     (3)  The infant is born alive by natural or artificial means;

     (b)  A person shall not deprive an infant of medically appropriate and reasonable medical care and treatment or surgical care.

     (c)  The requirements of this section shall not be construed to prevent an infant's parent(s) or guardian(s) from refusing to give consent to medical treatment or surgical care which is not medically necessary or reasonable, including care or treatment which either:

     (1)  Is not necessary to save the life of the infant;

     (2)  Has a potential risk to the infant's life or health that outweighs the potential benefit to the infant of the treatment or care; or

     (3)  Is treatment that will do no more than temporarily prolong the act of dying when death is imminent.

     (d)  The physician performing an abortion must take all medically appropriate and reasonable steps to preserve the life and health of a born alive infant.  If an abortion performed in a hospital results in a live birth, the physician attending the abortion shall provide immediate medical care to the infant, inform the mother of the live birth, and request transfer of the infant to an on-duty resident or emergency care physician who shall provide medically appropriate and reasonable medical care and treatment to the infant.

     If an abortion performed in a facility other than a hospital results in a live birth, a physician attending the abortion shall provide immediate medical care to the infant and call 9-1-1 for an emergency transfer of the infant to a hospital that shall provide medically appropriate and reasonable care and treatment to the infant.

     (e)  If the physician described in subsection (d) of this section is unable to perform the duties of subsection (d) because the physician is assisting the woman on whom the abortion was performed, then an attending physician's assistant, nurse, or other healthcare provider must assume the duties outlined in subsection (d) of this section.

     (f)  Any born alive infant including one born in the course of an abortion procedure shall be treated as a legal person under the laws of this State, with the same rights to medically appropriate and reasonable care and treatment.  Birth and death certificates shall be issued accordingly.

     (g)  If, before the abortion, the mother has stated in writing that she does not wish to keep the infant in the event that the abortion results in a live birth, and this writing is not retracted before the attempted abortion, the infant, if born alive, shall immediately upon birth become a ward under the care of the department of human services.

     (h)  No person may use any born alive infant for any type of scientific research or other kind of experimentation except as necessary to protect the life and health of the born alive infant.

     §    -3   Infanticide.  Any physician, nurse, or other healthcare provider who deliberately fails to provide medically appropriate and reasonable care and treatment to a born alive infant, where, as a result of that failure, the infant dies, shall be guilty of the crime of infanticide.

     §    -4   Criminal penalties.  (a)  Any physician, nurse, or other healthcare provider who intentionally or knowingly fails to provide medically appropriate and reasonable care and treatment to a born alive infant in the course of an attempted abortion shall be fined an amount not exceeding $1,000 or imprisoned not more than five years, or both.

     (b)  Any person found guilty of the crime of infanticide under section   -3(a) shall be guilty of murder in the second degree under section 707-701.5.

     (c)  If infanticide occurs under section   -3(a) and any physician, nurse, other healthcare provider, or person, including the parent(s) or guardian(s), then conceals the corpse of the infant with the intent to conceal the fact of its birth or to prevent a determination of whether it was alive, that person shall be guilty of concealing the corpse of an infant under section 709-901.

     (d)  Any person who knowingly violates section  -2(h) of this chapter shall be fined not more than $1,000 or imprisoned not more than five years, or both.

     (e)  Unless otherwise indicated, the parent(s) or guardian(s) of a born alive infant shall not be held criminally or civilly liable for the actions of a physician, nurse, or other healthcare provider that are in violation of this chapter and to which the parent(s) or guardian(s) did not give consent.

     §    -5   Civil and administrative action.  (a)  Any conviction under this chapter shall be admissible in a civil suit as prima facie evidence of a failure to provide medically appropriate and reasonable care and treatment to a born alive infant.  Any civil action may be based on a claim that the death of or injury to the born alive infant was a result of simple negligence, gross negligence, wantonness, willfulness, intentional conduct, or another violation of the legal standard of care.

     (b)  Failure to comply with the requirements of this chapter shall provide a basis for professional disciplinary action under section 442-9, section 453-8, section 455-11, or any other section appropriate, or any appropriate combination thereof, for the suspension or revocation of any license for physicians, licensed and registered nurses, or other licensed or regulated persons.  Any conviction of any person for any failure to comply with the requirements of this chapter shall result in the automatic suspension of his or her license for a period of no less than one year. 

     (c)  Failure to comply with the requirements of this chapter shall provide a basis for recovery for the parent(s) of the infant or the parent(s) or guardian(s) of the mother, if the mother is a minor, for the wrongful death of the infant under section 663-3, whether or not the infant was viable at the time the attempted abortion was performed.

     §    -6   Construction.  (a)  Nothing in this chapter shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being born alive.

     (b)  Nothing in this chapter shall be construed to affect existing federal or state law regarding abortion.

     (c)  Nothing in this chapter shall be construed as creating or recognizing a right to abortion.

     (d)  Nothing in this chapter shall be construed to alter generally accepted medical standards."

     SECTION 3.  Section 453-16, Hawaii Revised Statutes, is amended to read as follows:

     "§453-16  Intentional termination of pregnancy; penalties; refusal to perform.  (a)  No abortion shall be performed in this State unless:

     (1)  The abortion is performed by a licensed physician or surgeon, or by a licensed osteopathic physician and surgeon; and

     (2)  The abortion is performed in a hospital licensed by the department of health or operated by the federal government or an agency thereof, or in a clinic or physician's or osteopathic physician's office.

     (b)  Abortion [shall mean an operation to intentionally terminate the pregnancy of a nonviable fetus.  The termination of a pregnancy of a viable fetus is not included in this section.] has the same meaning as in section  -1.

     (c)  The State shall not deny or interfere with a female's right to choose or obtain an abortion of a nonviable fetus or an abortion that is necessary to protect the life or health of the female.

     (d)  Any person who knowingly violates subsection (a) shall be fined not more than $1,000 or imprisoned not more than five years, or both.

     (e)  Any attempted abortion that results in a born alive infant under chapter   shall be subject to the provisions of that chapter.

     [(e)]  (f)  Nothing in this section shall require any hospital or any person to participate in an abortion nor shall any hospital or any person be liable for a refusal."

     SECTION 4.  Section 442-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "§442-9  License refusal, revocations, suspension, fine, limitation, restriction, probation, reissuance.  (a)  In addition to any other actions authorized by law, the board shall refuse to issue or may order any license issued under this chapter to be revoked, suspended, limited, restricted, or placed under probation at any time in a proceeding before the board or fine a licensee for any cause authorized by law, including but not limited to the following:

     (1)  Procuring or aiding or abetting in procuring a criminal abortion;

     (2)  Failing to comply with the requirements of the born alive infant protection act, chapter   .

    [(2)] (3)  Employing what is popularly known as a "capper" or "steerer";

    [(3)] (4)  Obtaining a fee on the assurance that a manifestly incurable disease can be permanently cured;

    [(4)] (5)  Wilfully betraying patient confidentiality;

    [(5)] (6)  Making any untruthful statement in advertising one's practice or business under this chapter;

    [(6)] (7)  False, fraudulent, or deceptive advertising;

    [(7)] (8)  Advertising directly or indirectly, or in substance upon any card, sign, newspaper advertisement, or other written or printed sign of advertisement that the holder of a license or the licensee's employer or employee will treat, cure, or attempt to treat or cure any venereal disease, or will treat or cure, or attempt to treat or cure, any person afflicted with any sexual disease, lost manhood, sexual weakness, or sexual disorder or any disease of the sexual organs;

    [(8)] (9)  Being habitually intemperate;

    [(9)] (10) Habitually using any habit-forming drug, such as opium, or any of its derivatives, morphine, heroin, cocaine, or any other habit-forming drug;

   [(10)] (11) The advertising of any means whereby the monthly periods of women can be regulated or the menses reestablished if suppressed;

   [(11)] (12) Procuring a license through fraudulent misrepresentation or deceit;

   [(12)] (13) Professional misconduct or gross carelessness or manifest incapability in the practice of chiropractic;

   [(13)] (14) Violating section 453-2; and

   [(14)] (15) Knowingly recording, registering, or filing, or offering for recordation, registration, or filing, with the department of commerce and consumer affairs any written statement which has been falsely made, completed, or altered, or in which a false entry has been made, or which contains a false statement or false information."

     SECTION 5.  Section 453-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "§453-8  Revocation, limitation, suspension, or denial of licenses.  (a)  In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:

     (1)  Procuring, or aiding or abetting in procuring, a criminal abortion;

     (2)  Failing to comply with the requirements of the born alive infant protection act, chapter   . 

    [(2)] (3)  Employing any person to solicit patients for one's self;

    [(3)] (4)  Engaging in false, fraudulent, or deceptive advertising, including but not limited to:

         (A)  Making excessive claims of expertise in one or more medical specialty fields;

         (B)  Assuring a permanent cure for an incurable disease; or

         (C)  Making any untruthful and improbable statement in advertising one's medical or surgical practice or business;

    [(4)] (5)  Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;

    [(5)] (6)  Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability, or mental instability;

    [(6)] (7)  Procuring a license through fraud, misrepresentation, or deceit, or knowingly permitting an unlicensed person to perform activities requiring a license;

    [(7)] (8)  Professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery;

    [(8)] (9)  Incompetence or multiple instances of negligence, including but not limited to the consistent use of medical service, which is inappropriate or unnecessary;

    [(9)] (10) Conduct or practice contrary to recognized standards of ethics of the medical profession as adopted by the Hawaii Medical Association, the American Medical Association, the Hawaii Association of Osteopathic Physicians and Surgeons, or the American Osteopathic Association;

   [(10)] (11) Violation of the conditions or limitations upon which a limited or temporary license is issued;

   [(11)] (12) Revocation, suspension, or other disciplinary action by another state or federal agency of a license, certificate, or medical privilege for reasons as provided in this section;

   [(12)] (13) Conviction, whether by nolo contendere or otherwise, of a penal offense substantially related to the qualifications, functions, or duties of a physician or osteopathic physician, notwithstanding any statutory provision to the contrary;

   [(13)] (14) Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;

   [(14)] (15) Failure to report to the board, in writing, any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days after the disciplinary decision is issued; or

   [(15)] (16) Submitting to or filing with the board any notice, statement, or other document required under this chapter, which is false or untrue or contains any material misstatement or omission of fact."

     SECTION 6.  Section 455-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "§455-11  Discipline; grounds; proceedings; hearings.  (a)  In addition to any other actions authorized by law, the board shall have the power to deny, revoke, suspend, or refuse to renew any license to practice naturopathic medicine applied for or issued by the board in accordance with this chapter, and to fine or otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:

     (1)  Failing to meet or maintain the conditions and requirements necessary to qualify for the issuance of a license;

     (2)  Failing to comply with the requirements of the born alive infant protection act, chapter   . 

    [(2)] (3)  Procuring, or aiding or abetting in procuring, a criminal abortion;

    [(3)] (4)  Employing any person to solicit patients;

    [(4)] (5)  Obtaining a fee on the assurance that a manifestly incurable disease can be permanently cured;

    [(5)] (6)  Betraying a patient's confidence;

    [(6)] (7)  Making any untruthful and improbable statement in advertising one's naturopathic practice or business;

    [(7)] (8)  False, fraudulent, or deceptive advertising;

    [(8)] (9)  Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or an habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;

    [(9)] (10) Practicing naturopathic medicine while the ability to practice is impaired by alcohol, drug, physical disability, or mental instability;

   [(10)] (11) Procuring a license through fraud, misrepresentation, or deceit or knowingly permitting an unlicensed person to perform activities requiring a license;

   [(11)] (12) Professional misconduct or gross carelessness or manifest incapacity in the practice of naturopathic medicine;

   [(12)] (13) Conduct or practice contrary to recognized standard of ethics of the naturopathic profession;

   [(13)] (14) Using medical service or treatment which is inappropriate or unnecessary;

   [(14)] (15) Submitting to or filing with the board any notice, statement, or other document required under this chapter which is false or untrue or contains any material misstatement of fact, including any false certification of compliance with the continuing education requirement specified under section 455-8;

   [(15)] (16) Failure to report to the board any disciplinary action taken against the licensee in another jurisdiction within thirty days after the disciplinary action becomes final;

   [(16)] (17) Using the title "physician" without clearly identifying oneself as being a naturopathic physician;

   [(17)] (18) Prescribing, administering, and dispensing naturopathic formulary that are not included in the formulary established by the board under section 455-6; and

   [(18)] (19) Violation of any provision of this chapter or rules adopted under this chapter."

     SECTION 7.  Section 709-901, Hawaii Revised Statutes, is amended to read as follows:

     "§709-901  Concealing the corpse of an infant.  (1)  A person commits the offense of concealing the corpse of an infant if the person conceals the corpse of a new-born child with intent to conceal the fact of its birth or to prevent a determination of whether it was born dead or alive.

     (2)  An attempted abortion that results in a live birth under chapter   shall be considered a new-born child under this section.

     [(2)]  (3) Concealing the corpse of an infant is a misdemeanor."

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 10.  This Act shall take effect on July 1, 2015.

 

INTRODUCED BY:

_____________________________

 

 

Report Title:

Born Alive Infant; Abortion; Penalties

 

Description:

Ensures the protection and promotion of the health and well-being of all infants born alive the State.  Mandates medically appropriate and reasonable life-saving and life-sustaining medical care and treatment to all born alive infants.  Provides criminal penalties.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.