36-2301 - Duty to promote life of fetus or embryo delivered alive; rules; judicial enforcement; civil action; damages; definitions

36-2301. Duty to promote life of fetus or embryo delivered alive; rules; judicial enforcement; civil action; damages; definitions

A. If an abortion is performed and a human fetus or embryo is delivered alive, it is the duty of any physician performing such an abortion and any additional physician in attendance as required by section 36-2301.01 to see that all available means and medical skills are used to promote, preserve and maintain the life of such a fetus or embryo.

B. If an abortion is performed and a human fetus or embryo is delivered alive, the physician performing the abortion shall document and report to the department of health services the measures the physician performed to maintain the life of the fetus or embryo. If an abortion is performed and a human fetus or embryo with a lethal fetal condition is delivered alive, the physician performing the abortion shall also document and report to the department of health services the specific lethal fetal condition that was diagnosed before the performance of the abortion and that was confirmed by an examination performed after the human embryo or fetus was delivered alive.

C. Before an abortion of a human fetus or embryo diagnosed with a lethal fetal condition, the physician performing the abortion must comply with the requirements of section 36-2158, subsection A and shall also inform the woman, orally and in person, that if the fetus or embryo is delivered alive, the diagnosis must be confirmed after the delivery and the standard of care required in subsection D of this section must be given.

D. The director of the department of health services shall prescribe rules requiring an abortion clinic or a hospital that performs or induces an abortion at or after twenty weeks' gestational age as defined in section 36-2151 to establish, document and implement policies and procedures to ensure compliance with this section. At a minimum, these policies and procedures shall require that:

1. In the case of an abortion clinic, a person is designated to contact emergency services immediately at the birth of a fetus or embryo delivered alive to arrange transfer to a hospital.

2. At least one person who is trained in neonatal resuscitation is present in the room where the abortion takes place for any abortion performed or induced at or after twenty weeks' gestational age.

3. Establish a protocol for rapid neonatal resuscitation of a fetus or embryo delivered alive, including assessing respiration and heart rate, clearing secretions, positioning the airway, providing warmth, drying and administering oxygen as needed.

E. If an abortion is performed and a human fetus or embryo with a lethal fetal condition is delivered alive, and the protocol for rapid neonatal resuscitation of a fetus or embryo pursuant to subsection D of this section is complied with and any further treatment beyond what is prescribed pursuant to subsection D of this section will do no more than temporarily prolong the act of dying when death is imminent, no further treatment is required by this section.

F. A hospital that is not in substantial compliance with the rules or policies and procedures adopted pursuant to this section may be subject to the penalties and sanctions specified in sections 36-427 and 36-431.01.

G. An action to enforce this section shall be brought in the name of the state by the attorney general or the county attorney in the superior court in the county in which the violation occurred.

H. In addition to other remedies available under the common or statutory law of this state, any of the following persons may file a civil action to obtain appropriate relief for a violation of this section:

1. The mother of the human fetus or embryo delivered alive.

2. The father of the human fetus or embryo delivered alive, unless the pregnancy resulted from the plaintiff's criminal conduct.

3. A maternal grandparent of the human fetus or embryo delivered alive if the mother was not at least eighteen years of age at the time of the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.

I. A civil action filed pursuant to subsection H of this section shall be brought in the superior court in the county in which the woman on whom the abortion was performed resides and may be based on a claim that the failure to see that all available means and medical skills were used to promote, preserve and maintain the life of the human fetus or embryo was a result of simple negligence, gross negligence or wanton, wilful or intentional misconduct or any other legal standard of care. Relief for a civil action filed pursuant to subsection H of this section may include any of the following:

1. Monetary damages for psychological, emotional and physical injuries resulting from the violation of this section.

2. Statutory damages in an amount equal to five thousand dollars or three times the cost of the abortion, whichever is greater.

3. Reasonable attorney fees and costs.

J. A civil action brought pursuant to this section must be initiated within six years after the violation occurred.

K. For the purposes of this section:

1. "Abortion" has the same meaning prescribed in section 36-2151.

2. "Delivered alive" means the complete expulsion or extraction from the mother of a fetus or embryo, regardless of the state of gestational development, who, after expulsion or extraction, whether or not the umbilical cord has been cut or the placenta is attached, shows any evidence of life, including one or more of the following:

(a) Breathing.

(b) A heartbeat.

(d) Definite movement of voluntary muscles.

3. "Lethal fetal condition" has the same meaning prescribed in section 36-2158.