21.220.25 96th Legislative Session 915
Introduced by: Representative Deutsch
An Act to maintain the life of any child born alive.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That § 34-23A-16.1 be AMENDED.
34-23A-16.1. Child born alive--Preservation of life.
same available means and medical skills that a physician would render
to any child born
in the course of an abortion procedure or not, shall have the same
rights to medical treatment and other necessary health care
to promote, preserve, and maintain the child's life, must be used to
promote, preserve, and maintain the life of a child born alive as a
result of an abortion or an attempted abortion at the same
Any physician who performs or attempts to perform an abortion that results in a child being born alive has a physician-patient relationship with that child. In addition to using the means and skills required by this section, the physician shall ensure that the child is immediately admitted to a hospital.
For purposes of this section, born alive means the complete expulsion or extraction of a human being from its mother, at any stage of development, if after the expulsion or extraction, and regardless of whether the umbilical cord has been cut, that human being:
(2) Has a beating heart;
(3) Has pulsation of the umbilical cord; or
(4) Has definite movement of voluntary muscles.
Section 2. That a NEW SECTION be added:
34-23A-16.2. Abortion--Child born alive--Civil and disciplinary action.
Any mother upon whom an abortion has been performed, or the mother's parent or guardian in the case of a minor, may maintain an action, against the physician who performed the abortion, for the death of, or injury to, the infant if:
(1) The abortion resulted in the infant being born alive; and
(2) The infant's death or injury was the result of negligence, gross negligence, or any other violation of a legal standard of care.
An award under this section may include compensatory damages, punitive damages equal to three times the cost of the abortion procedure, and reasonable attorney's fees.
A physician who fails to meet the requirements of § 34-23A-16.1 is liable to the state for a civil penalty at least equal to one hundred thousand dollars. The attorney general may bring the suit and may recover reasonable attorney's fees. The civil penalty is in addition to any other recovery authorized by law. If the physician prevails, the physician may recover reasonable attorney's fees incurred in defending against the suit.
If a physician fails to meet the requirements of § 34-23A-16.1, that failure constitutes grounds for the suspension or revocation of the physician's license to practice medicine under § 36-4-29.
Any person having knowledge of a failure to meet the requirements of § 34-23A-16.1 may report the failure to the attorney general. Upon request, the person's identity must remain confidential.
Nothing in § 34-23A-16.1 may be construed to hold the mother of the infant born alive criminally or civilly liable for any acts or omissions of the physician, if the mother did not consent to the acts or omissions.
Section 3. That § 34-23A-19 be AMENDED.
34-23A-19. Performance of abortion--Required reports--Rules.
Any facility or physician
performing abortions in this state shall
report to the state department of health as follows
forward to the Department of Health:
abortion used in each abortion performed;
(3) Complete pathology reports
the period of
gestation of fetuses, the
abnormality, and the
fetuses, if the facility where the abortion is performed is so
to complete such
maternal deaths due directly or indirectly to abortions;
(5) Reports of all follow‑up,
and long‑term complications due
to abortion in
due to abortion
who received an abortion;
number of infants who survived an attempted abortion;
(7) Medical action taken to preserve the life of an aborted child born alive;
(8) The outcome for an aborted child born alive, including the child's survival, death, and location of death, if known; and
required by the
issued by the department
as authorized by
No report made under this section
name of any female receiving
The Department of Health
in accordance with
for the reporting of such acquire
the necessary information
concerning abortion as will enable the department to provide complete
reporting to the centers for disease control of the public health
services in the United States Department of Health and Human Services
for the department's report, to the Centers for Disease Control and
all abortion‑related data,
as recommended by
for disease control recommend be reported to them by states.
Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language.
indicate deleted language.