HOUSE OF REPRESENTATIVES
TWENTY-EIGHTH LEGISLATURE, 2016
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 Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
bORN ALIVE INFANT PROTECTION ACT
§ A-1 Short title. This chapter may be cited as the Born Alive Infant Protection Act.
§ A-2 Findings and purpose. 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 Constitution and laws of this State. The legislature further finds that over ten thousand abortions nationwide annually reportedly occur after twenty weeks' gestation, a time during which a fetus could be viable. Further, a British study found that one hundred and three live births occurred over a ten year period that resulted in subsequent neonatal deaths after an attempted abortion. Without proper legal protection, new-born infants who have unexpectedly survived an abortion procedure 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 does not infringe 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 Act is to ensure the protection and promotion of the health and well-being of all infants born alive as a result of an abortion performed in the State, to mandate that healthcare providers give medically appropriate and reasonable life-saving and life-sustaining medical care and treatment to all such 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 such born alive infants.
§ A-3 Application. This chapter shall only apply to abortions that result in live births.
§ A-4 Definitions. As used in this chapter:
"Abortion" has the same meaning as in section 453-16.
"Born alive" or "live birth" means the complete expulsion or extraction of an infant from his or her mother as a result of an abortion, 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, shows any evidence of life, including, but not limited to, one or more of the following:
(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.
"Healthcare provider" means any person providing aid or assistance to a physician or a nurse, or any person authorized to provide healthcare to the mother during an abortion.
"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.
"Nurse" means a person who has been or is currently licensed under chapter 457.
"Physician" means a person who has been or is currently licensed to practice medicine or osteopathy under chapter 453.
"Premature" or "preterm" means occurring prior to the thirty-seventh week of gestation.
§ A-5 Requirements and responsibilities. (a) A person shall not deny or deprive a born alive 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; or
(2) The infant is not wanted by the parent(s) or guardian(s).
(b) A person shall not deprive a born alive 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:
(1) Is not necessary to save the life of the infant;
(2) Has a potential risk of harm 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 shall 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 care and treatment to the infant.
If an abortion performed in a facility other than a hospital results in a live birth, the 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 shall 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 shall use, or authorize to be used, 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.
§ A-6 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, where, as a result of that failure, the infant dies, shall be guilty of the offense of murder in the second degree under section 707-701.5.
(b) Any physician, nurse, or other healthcare provider who recklessly 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 offense of manslaughter under section 707-702.
(c) If any physician, nurse, other healthcare provider, or person, including the parent(s) or guardian(s), 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 the offense of concealing the corpse of an infant under section 709-901.
(d) Any physician, nurse, other healthcare provider, or person, including the parent(s) or guardian(s), knowingly violates section A-5(h) of this chapter shall be fined not more than $10,000 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.
§ A-7 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 chapter 453, chapter 457, or any other chapter 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.
§ A-8 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 2. 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. [
termination of a pregnancy of a viable fetus is not included in this section.]
(c) The termination of a pregnancy of a viable fetus shall be subject to the born alive infant protection act, chapter A.
(c)] (d) 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)] (e) 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)] (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 3. Section 453-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(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 A.
(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
(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
(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
SECTION 4. Section 457-12, Hawaii Revised Statutes, is amended to read as follows:
"§457-12 Discipline; grounds; proceedings; hearings. (a) In addition to any other actions authorized by law, the board shall have the power to deny, revoke, limit, or suspend any license to practice nursing as a registered nurse or as a licensed practical nurse applied for or issued by the board in accordance with this chapter, and to fine or to otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:
(1) Fraud or deceit in procuring or attempting to procure a license to practice nursing as a registered nurse or as a licensed practical nurse;
(2) Gross immorality;
(3) Unfitness or incompetence by reason of negligence, habits, or other causes;
(4) Habitual intemperance, addiction to, or dependency on alcohol or other habit-forming substances;
(5) Mental incompetence;
(6) Unprofessional conduct as defined by the board in accordance with its own rules;
(7) Wilful or repeated violation of any of the provisions of this chapter or any rule adopted by the board;
(8) Revocation, suspension, limitation, or other disciplinary action by another state of a nursing license for reasons as provided in this section;
(9) Conviction, whether by nolo contendere or otherwise, of a penal offense substantially related to the qualifications, functions, or duties of a nurse, notwithstanding any statutory provision to the contrary;
(10) 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;
(11) 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 a false attestation of compliance with continuing competency requirements; or
(12) Failing to comply with the requirements of the born alive infant protection act, chapter A.
(12)] (13) Violation of the conditions or
limitations upon which any license is issued.
(b) Any fine imposed by the board after a hearing in accordance with chapter 91 shall be no less than $100 and no more than $1,000 for each violation.
(c) The remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this State."
SECTION 5. 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) If an attempted abortion results in a live birth under chapter A, the born alive infant shall be considered a new-born child under this section.
(2)] (3) Concealing the corpse
of an infant is a misdemeanor."
SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 7. In codifying the new sections added by sections 2, 3, 4, and 5 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect on July 1, 2016.
Born Alive Infant; Abortion; Penalties.
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 civil and 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.