HOUSE BILL 441
56th legislature - STATE OF NEW MEXICO - first session, 2023
Jenifer Jones and Tanya Mirabal Moya and Mark Duncan and
James G. Townsend and Cathrynn N. Brown
RELATING TO CHILDBIRTH; REQUIRING MEDICAL CARE FOR ALL INFANTS WHO ARE BORN ALIVE; DEFINING "BORN ALIVE" AND "INFANT"; MANDATING REPORTING; ENACTING PENALTIES; ENACTING CIVIL REMEDIES; CREATING THE TASK FORCE TO MONITOR BORN ALIVE BIRTHS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] DEFINITIONS.--For the purposes of Sections 1 through 6 of this act:
A. "born alive" or "live birth" means the birth of an infant who, 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:
(2) a heartbeat;
(3) umbilical cord pulsation; or
(4) definite movement of voluntary muscles; and
B. "infant" means a child who has been completely expulsed or extracted from the child's mother, regardless of the stage of gestational development.
SECTION 2. [NEW MATERIAL] 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 when the infant is born alive by natural or artificial means.
B. A person shall not deprive an infant who is born alive 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 or guardian from refusing to give consent to medical treatment or surgical care that is not medically necessary or reasonable, including care or treatment that:
(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) will do no more than temporarily prolong the act of dying when death is imminent.
D. A health care provider attempting to perform an abortion shall take all medically appropriate and reasonable steps to preserve the life and health of a born alive infant. If an attempt to perform an abortion performed in a hospital results in a live birth, the health care provider attending 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 attempt to perform an abortion performed in a facility other than a hospital results in a live birth, a health care provider attending the abortion shall provide immediate medical care to the infant and call the 911 emergency response system 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 health care provider described in Subsection D of this section is unable to perform the duties outlined in that subsection because the health care provider is assisting the woman on whom the abortion was to be performed, another health care 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 state law, with the same rights to medically appropriate and reasonable care and treatment. Birth and, if necessary, death certificates shall be issued according to state law.
G. No person may use any born alive infant for any type of scientific research or other kind of experimentation except as necessary to protect or preserve the life and health of the born alive infant.
SECTION 3. [NEW MATERIAL] MANDATORY REPORTING OF VIOLATIONS.--A health care practitioner or any employee of a hospital, a physician's office or an abortion clinic who has knowledge of a failure to comply with the provisions of Section 2 of this act shall immediately report the failure to an appropriate state or federal law enforcement agency, or to both.
SECTION 4. [NEW MATERIAL] CRIMINAL PENALTIES.--
A. Whoever intentionally performs an overt act that kills a born alive infant is guilty of a first degree felony resulting in the death of a child and shall be sentenced upon conviction pursuant to the provisions of Section 31-18-15 NMSA 1978.
B. Whoever intentionally attempts to perform an overt act to kill a born alive infant is guilty of a second degree felony and shall be sentenced upon conviction pursuant to the provisions of Section 31-18-15 NMSA 1978.
SECTION 5. [NEW MATERIAL] CIVIL REMEDIES.--If a child is born alive and there is a violation of Section 2 of this act, the woman upon whom the abortion was performed or attempted may obtain appropriate relief in a civil action against any person who committed the violation. Appropriate relief in a civil action includes:
A. money damages for all injuries, psychological and physical, occasioned by the violation;
B. statutory damages equal to three times the cost of the abortion or attempted abortion; and
C. punitive damages and reasonable attorney fees.
SECTION 6. [NEW MATERIAL] CREATION OF TASK FORCE--PERIODIC REPORTING AND OVERSIGHT.--
A. The "task force to monitor born alive births" is created. The task force shall have five members, including two members from the department of health and three members from the children, youth and families department.
B. The task force shall:
(1) create reporting guidelines for each born alive infant incident that takes place in the state. The reporting requirements should include, at a minimum, when a born alive infant was given medical treatment or emergency medical care or when the 911 emergency response system was called for an emergency transfer pursuant to Subsection D of Section 2 of this act;
(2) assign children, youth and families department caseworkers to perform monthly inspections and conduct staff interviews at each facility in the state that offers elective abortions to determine whether appropriate measures and care are being given to born alive infants and if the reporting guidelines are being followed; and
(3) provide a yearly report of its findings to the governor and the legislature.
- 6 -