| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
| |
|
|
relating to the disposition of embryonic and fetal tissue remains; |
|
|
imposing a civil penalty. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Section 171.012(a), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(a) Consent to an abortion is voluntary and informed only |
|
|
if: |
|
|
(1) the physician who is to perform the abortion |
|
|
informs the pregnant woman on whom the abortion is to be performed |
|
|
of: |
|
|
(A) the physician's name; |
|
|
(B) the particular medical risks associated with |
|
|
the particular abortion procedure to be employed, including, when |
|
|
medically accurate: |
|
|
(i) the risks of infection and hemorrhage; |
|
|
(ii) the potential danger to a subsequent |
|
|
pregnancy and of infertility; and |
|
|
(iii) the possibility of increased risk of |
|
|
breast cancer following an induced abortion and the natural |
|
|
protective effect of a completed pregnancy in avoiding breast |
|
|
cancer; |
|
|
(C) the probable gestational age of the unborn |
|
|
child at the time the abortion is to be performed; and |
|
|
(D) the medical risks associated with carrying |
|
|
the child to term; |
|
|
(2) the physician who is to perform the abortion or the |
|
|
physician's agent informs the pregnant woman that: |
|
|
(A) medical assistance benefits may be available |
|
|
for prenatal care, childbirth, and neonatal care; |
|
|
(B) the father is liable for assistance in the |
|
|
support of the child without regard to whether the father has |
|
|
offered to pay for the abortion; and |
|
|
(C) public and private agencies provide |
|
|
pregnancy prevention counseling and medical referrals for |
|
|
obtaining pregnancy prevention medications or devices, including |
|
|
emergency contraception for victims of rape or incest; |
|
|
(3) the physician who is to perform the abortion or the |
|
|
physician's agent: |
|
|
(A) provides the pregnant woman with the printed |
|
|
materials described by Section 171.014; and |
|
|
(B) informs the pregnant woman that those |
|
|
materials: |
|
|
(i) have been provided by the Department of |
|
|
State Health Services; |
|
|
(ii) are accessible on an Internet website |
|
|
sponsored by the department; |
|
|
(iii) describe the unborn child and list |
|
|
agencies that offer alternatives to abortion; and |
|
|
(iv) include a list of agencies that offer |
|
|
sonogram services at no cost to the pregnant woman; |
|
|
(4) the physician who is to perform the abortion or the |
|
|
physician's agent: |
|
|
(A) provides the pregnant woman with a |
|
|
disposition of remains form described by Section 171.0161; and |
|
|
(B) informs the pregnant woman that the form: |
|
|
(i) is provided by the Department of State |
|
|
Health Services; |
|
|
(ii) is accessible on the department's |
|
|
Internet website; |
|
|
(iii) describes the options for the |
|
|
disposition of the embryonic and fetal tissue remains; and |
|
|
(iv) must be completed by the pregnant |
|
|
woman and received by the physician before the abortion is |
|
|
performed; |
|
|
(5) before any sedative or anesthesia is administered |
|
|
to the pregnant woman and at least 24 hours before the abortion or |
|
|
at least two hours before the abortion if the pregnant woman waives |
|
|
this requirement by certifying that she currently lives 100 miles |
|
|
or more from the nearest abortion provider that is a facility |
|
|
licensed under Chapter 245 or a facility that performs more than 50 |
|
|
abortions in any 12-month period: |
|
|
(A) the physician who is to perform the abortion |
|
|
or an agent of the physician who is also a sonographer certified by |
|
|
a national registry of medical sonographers performs a sonogram on |
|
|
the pregnant woman on whom the abortion is to be performed; |
|
|
(B) the physician who is to perform the abortion |
|
|
displays the sonogram images in a quality consistent with current |
|
|
medical practice in a manner that the pregnant woman may view them; |
|
|
(C) the physician who is to perform the abortion |
|
|
provides, in a manner understandable to a layperson, a verbal |
|
|
explanation of the results of the sonogram images, including a |
|
|
medical description of the dimensions of the embryo or fetus, the |
|
|
presence of cardiac activity, and the presence of external members |
|
|
and internal organs; and |
|
|
(D) the physician who is to perform the abortion |
|
|
or an agent of the physician who is also a sonographer certified by |
|
|
a national registry of medical sonographers makes audible the heart |
|
|
auscultation for the pregnant woman to hear, if present, in a |
|
|
quality consistent with current medical practice and provides, in a |
|
|
manner understandable to a layperson, a simultaneous verbal |
|
|
explanation of the heart auscultation; |
|
|
(6) [(5)] before receiving a sonogram under |
|
|
Subdivision (5)(A) [(4)(A)] and before the abortion is performed |
|
|
and before any sedative or anesthesia is administered, the pregnant |
|
|
woman completes and certifies with her signature an election form |
|
|
that states as follows: |
|
|
"ABORTION AND SONOGRAM ELECTION |
|
|
(1) THE INFORMATION AND PRINTED MATERIALS |
|
|
DESCRIBED BY SECTIONS 171.012(a)(1)-(4) |
|
|
[171.012(a)(1)-(3)], TEXAS HEALTH AND SAFETY CODE, |
|
|
HAVE BEEN PROVIDED AND EXPLAINED TO ME. |
|
|
(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF |
|
|
AN ABORTION. |
|
|
(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM |
|
|
PRIOR TO RECEIVING AN ABORTION. |
|
|
(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW |
|
|
THE SONOGRAM IMAGES. |
|
|
(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR |
|
|
THE HEARTBEAT. |
|
|
(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO |
|
|
HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I |
|
|
CERTIFY IN WRITING TO ONE OF THE FOLLOWING: |
|
|
___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT, |
|
|
INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT |
|
|
HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR |
|
|
THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY |
|
|
BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF |
|
|
RETALIATION RESULTING IN SERIOUS BODILY INJURY. |
|
|
___ I AM A MINOR AND OBTAINING AN ABORTION IN |
|
|
ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER |
|
|
CHAPTER 33, TEXAS FAMILY CODE. |
|
|
___ MY FETUS HAS AN IRREVERSIBLE MEDICAL |
|
|
CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE |
|
|
DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL |
|
|
FILE. |
|
|
(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL |
|
|
AND WITHOUT COERCION. |
|
|
(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM |
|
|
THE NEAREST ABORTION PROVIDER THAT IS A FACILITY |
|
|
LICENSED UNDER CHAPTER 245, TEXAS HEALTH AND SAFETY |
|
|
CODE, OR A FACILITY THAT PERFORMS MORE THAN 50 |
|
|
ABORTIONS IN ANY 12-MONTH PERIOD ONLY: |
|
|
I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 |
|
|
MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT |
|
|
IS A FACILITY LICENSED UNDER CHAPTER 245, TEXAS HEALTH |
|
|
AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE THAN |
|
|
50 ABORTIONS IN ANY 12-MONTH PERIOD, I WAIVE THE |
|
|
REQUIREMENT TO WAIT 24 HOURS AFTER THE SONOGRAM IS |
|
|
PERFORMED BEFORE RECEIVING THE ABORTION PROCEDURE. MY |
|
|
PLACE OF RESIDENCE IS:__________. |
|
|
________________________________________ |
|
|
SIGNATURE DATE"; |
|
|
(7) [(6)] before the abortion is performed, the |
|
|
physician who is to perform the abortion receives: |
|
|
(A) a copy of the completed disposition of |
|
|
remains form required by Subdivision (4); and |
|
|
(B) a copy of the signed, written certification |
|
|
required by Subdivision (6) [(5)]; and |
|
|
(8) [(7)] the pregnant woman is provided the name of |
|
|
each person who provides or explains the information required under |
|
|
this subsection. |
|
|
SECTION 2. Section 171.0121, Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
Sec. 171.0121. MEDICAL RECORD. (a) Before the abortion |
|
|
begins, a copy of both the completed disposition of remains form |
|
|
required under Section 171.012(a)(4) and the signed, written |
|
|
certification received by the physician under Section |
|
|
171.012(a)(7) [171.012(a)(6)] must be placed in the pregnant |
|
|
woman's medical records. |
|
|
(b) A copy of the signed, written certification required |
|
|
under Sections 171.012(a)(6) [171.012(a)(5)] and (7) [(6)] shall be |
|
|
retained by the facility where the abortion is performed until: |
|
|
(1) the seventh anniversary of the date it is signed; |
|
|
or |
|
|
(2) if the pregnant woman is a minor, the later of: |
|
|
(A) the seventh anniversary of the date it is |
|
|
signed; or |
|
|
(B) the woman's 21st birthday. |
|
|
SECTION 3. Sections 171.0122(b), (c), and (d), Health and |
|
|
Safety Code, are amended to read as follows: |
|
|
(b) A pregnant woman may choose not to view the sonogram |
|
|
images required to be provided to and reviewed with the pregnant |
|
|
woman under Section 171.012(a)(5) [171.012(a)(4)]. |
|
|
(c) A pregnant woman may choose not to hear the heart |
|
|
auscultation required to be provided to and reviewed with the |
|
|
pregnant woman under Section 171.012(a)(5) [171.012(a)(4)]. |
|
|
(d) A pregnant woman may choose not to receive the verbal |
|
|
explanation of the results of the sonogram images under Section |
|
|
171.012(a)(5)(C) [171.012(a)(4)(C)] if: |
|
|
(1) the woman's pregnancy is a result of a sexual |
|
|
assault, incest, or other violation of the Penal Code that has been |
|
|
reported to law enforcement authorities or that has not been |
|
|
reported because she has a reason that she declines to reveal |
|
|
because she reasonably believes that to do so would put her at risk |
|
|
of retaliation resulting in serious bodily injury; |
|
|
(2) the woman is a minor and obtaining an abortion in |
|
|
accordance with judicial bypass procedures under Chapter 33, Family |
|
|
Code; or |
|
|
(3) the fetus has an irreversible medical condition or |
|
|
abnormality, as previously identified by reliable diagnostic |
|
|
procedures and documented in the woman's medical file. |
|
|
SECTION 4. The heading to Section 171.013, Health and |
|
|
Safety Code, is amended to read as follows: |
|
|
Sec. 171.013. DISTRIBUTION OF STATE MATERIALS AND FORM. |
|
|
SECTION 5. Section 171.013(a), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(a) The physician or the physician's agent shall furnish |
|
|
copies of the materials described by Section 171.014 and the form |
|
|
described by Section 171.0161 to the pregnant woman at least 24 |
|
|
hours before the abortion is to be performed and shall direct the |
|
|
pregnant woman to the Internet website required to be published |
|
|
under Section 171.014(e). The physician or the physician's agent |
|
|
may furnish the materials and form to the pregnant woman by mail if |
|
|
the materials and form are mailed, restricted delivery to |
|
|
addressee, at least 72 hours before the abortion is to be performed. |
|
|
SECTION 6. Subchapter B, Chapter 171, Health and Safety |
|
|
Code, is amended by adding Section 171.0161 to read as follows: |
|
|
Sec. 171.0161. DISPOSITION OF EMBRYONIC AND FETAL TISSUE |
|
|
REMAINS: FORM; NONPROFIT ORGANIZATION ASSISTANCE REGISTRY; RULES. |
|
|
(a) A pregnant woman may decide to inter or cremate the embryonic |
|
|
and fetal tissue remains of an unborn child who is aborted. |
|
|
(b) The department shall develop and maintain a form for a |
|
|
pregnant woman to select the method of disposition of the embryonic |
|
|
and fetal tissue remains. |
|
|
(c) The form must include: |
|
|
(1) burial and cremation as methods of disposition of |
|
|
the embryonic and fetal tissue remains of an unborn child; |
|
|
(2) a statement that the pregnant woman may elect to |
|
|
have the abortion provider dispose of the embryonic and fetal |
|
|
tissue remains in accordance with Section 697.005; and |
|
|
(3) a statement that the pregnant woman may privately |
|
|
dispose of the embryonic and fetal tissue remains of an unborn child |
|
|
in a manner that complies with Section 697.005 but may be held |
|
|
financially responsible for the abortion provider's reasonable |
|
|
costs of preparing the remains for transport. |
|
|
(d) The form must be: |
|
|
(1) in English and Spanish; |
|
|
(2) easily comprehensible; and |
|
|
(3) in a large, clearly legible typeface. |
|
|
(e) The department shall post the form on the department's |
|
|
Internet website. |
|
|
(f) The department shall: |
|
|
(1) establish and maintain a registry of: |
|
|
(A) participating funeral homes and cemeteries |
|
|
willing to provide free common burial or low-cost private burial; |
|
|
and |
|
|
(B) private nonprofit organizations that |
|
|
register with the department to provide financial assistance for |
|
|
the costs associated with burial or cremation of the embryonic and |
|
|
fetal tissue remains of an unborn child; and |
|
|
(2) make the registry information available on request |
|
|
to a physician, physician's agent, or pregnant woman electing to |
|
|
privately dispose of the embryonic and fetal tissue remains. |
|
|
(g) The executive commissioner shall adopt rules to |
|
|
implement this section. |
|
|
SECTION 7. Subtitle B, Title 8, Health and Safety Code, is |
|
|
amended by adding Chapter 697 to read as follows: |
|
|
CHAPTER 697. DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS |
|
|
Sec. 697.001. PURPOSE. The purpose of this chapter is to |
|
|
express the state's profound respect for the life of the unborn by |
|
|
providing for a dignified final disposition of embryonic and fetal |
|
|
tissue remains. |
|
|
Sec. 697.002. DEFINITIONS. In this chapter: |
|
|
(1) "Cremation" means the irreversible process of |
|
|
reducing remains to ashes or bone fragments through extreme heat |
|
|
and evaporation. |
|
|
(2) "Department" means the Department of State Health |
|
|
Services. |
|
|
(3) "Embryonic and fetal tissue remains" means an |
|
|
embryo, a fetus, body parts, or organs from a pregnancy for which |
|
|
the issuance of a fetal death certificate is not required by law. |
|
|
The term does not include the umbilical cord, placenta, gestational |
|
|
sac, blood, or body fluids. |
|
|
(4) "Executive commissioner" means the executive |
|
|
commissioner of the Health and Human Services Commission. |
|
|
(5) "Incineration" means the process of burning |
|
|
remains in an incinerator. |
|
|
(6) "Interment" means the disposition of remains by |
|
|
entombment, burial, or placement in a niche. |
|
|
(7) "Steam disinfection" means the act of subjecting |
|
|
remains to steam under pressure to disinfect the remains. |
|
|
Sec. 697.003. APPLICABILITY OF CHAPTER. This chapter does |
|
|
not apply to embryonic and fetal tissue remains: |
|
|
(1) expelled or removed from a pregnant woman who is |
|
|
not at the time of expulsion or removal in the care of a health care |
|
|
facility; |
|
|
(2) sent to a clinical, diagnostic, pathological, or |
|
|
biomedical research laboratory for medical testing; |
|
|
(3) sent to a forensic laboratory for testing related |
|
|
to a criminal investigation; or |
|
|
(4) donated for research, provided the donation |
|
|
complies with the laws of this state. |
|
|
Sec. 697.004. APPLICABILITY OF OTHER LAW. Embryonic and |
|
|
fetal tissue remains are not pathological waste. Except as |
|
|
otherwise provided by this chapter, Chapters 711 and 716 of this |
|
|
code and Chapter 651, Occupations Code, do not apply to the |
|
|
disposition of embryonic and fetal tissue remains. |
|
|
Sec. 697.005. DISPOSITION OF EMBRYONIC AND FETAL TISSUE |
|
|
REMAINS. (a) A health care facility in this state that provides |
|
|
health or medical care to a pregnant woman shall dispose of |
|
|
embryonic and fetal tissue remains related to that care by: |
|
|
(1) interment; |
|
|
(2) cremation or incineration; or |
|
|
(3) steam disinfection followed by interment. |
|
|
(b) The ashes resulting from the cremation or incineration |
|
|
of embryonic and fetal tissue remains: |
|
|
(1) may be interred or scattered in any manner as |
|
|
authorized by law for human remains; and |
|
|
(2) may not be placed in a landfill. |
|
|
(c) A health care facility responsible for disposing of |
|
|
embryonic and fetal tissue remains may coordinate with an entity in |
|
|
the registry established under Section 171.0161 in an effort to |
|
|
offset the cost associated with burial or cremation of the |
|
|
embryonic and fetal tissue remains of an unborn child. |
|
|
(d) The executive commissioner shall adopt rules to |
|
|
implement this section, including rules for the collection, |
|
|
storage, handling, and transportation of embryonic and fetal tissue |
|
|
remains. |
|
|
Sec. 697.006. SUSPENSION OR REVOCATION OF LICENSE. The |
|
|
department may suspend or revoke the license of a health care |
|
|
facility that violates Section 697.005 or a rule adopted under this |
|
|
chapter. |
|
|
Sec. 697.007. SUIT BY ATTORNEY GENERAL. (a) The attorney |
|
|
general, at the request of the department, may file suit against a |
|
|
health care facility that violates Section 697.005 or a rule |
|
|
adopted under this chapter for: |
|
|
(1) injunctive relief, including a temporary |
|
|
restraining order, under Section 697.008; |
|
|
(2) recovery of a civil penalty under Section 697.009; |
|
|
or |
|
|
(3) both injunctive relief and a civil penalty. |
|
|
(b) A suit filed under this section must be filed in a |
|
|
district court in Travis County or the county in which the health |
|
|
care facility described by Subsection (a) is located. |
|
|
Sec. 697.008. INJUNCTIVE RELIEF. The attorney general may |
|
|
obtain injunctive relief in a suit filed under Section 697.007. |
|
|
Injunctive relief provided by this section is in addition to any |
|
|
other action, proceeding, or remedy authorized by law. It is not |
|
|
necessary to allege or prove in a suit filed under Section 697.007 |
|
|
seeking injunctive relief that an adequate remedy at law does not |
|
|
exist or that substantial or irreparable harm would result from the |
|
|
continued violation. |
|
|
Sec. 697.009. CIVIL PENALTY. (a) A health care facility |
|
|
that violates Section 697.005 or a rule adopted under this chapter |
|
|
is liable for a civil penalty in an amount of $1,000 for each |
|
|
violation. Each day of a continuing violation constitutes a |
|
|
separate violation. |
|
|
(b) The attorney general may file suit under Section 697.007 |
|
|
to collect the civil penalty. The attorney general may recover |
|
|
reasonable expenses incurred in collecting the civil penalty, |
|
|
including court costs, reasonable attorney's fees, investigation |
|
|
costs, witness fees, and disposition expenses. |
|
|
SECTION 8. Not later than December 1, 2017: |
|
|
(1) the executive commissioner of the Health and Human |
|
|
Services Commission shall adopt the rules required to implement |
|
|
this Act; and |
|
|
(2) the Department of State Health Services shall |
|
|
adopt the forms and procedures necessary to implement this Act. |
|
|
SECTION 9. (a) Chapter 171, Health and Safety Code, as |
|
|
amended by this Act, applies only to an abortion performed on or |
|
|
after February 1, 2018. An abortion performed before that date is |
|
|
governed by the law in effect immediately before the effective date |
|
|
of this Act, and that law is continued in effect for that purpose. |
|
|
(b) Chapter 697, Health and Safety Code, as added by this |
|
|
Act, applies only to the disposition of embryonic and fetal tissue |
|
|
remains that occurs on or after February 1, 2018. The disposition |
|
|
of embryonic and fetal tissue remains that occurs before February |
|
|
1, 2018, is governed by the law in effect immediately before the |
|
|
effective date of this Act, and the former law is continued in |
|
|
effect for that purpose. |
|
|
SECTION 10. This Act takes effect September 1, 2017. |
|
|
|
|
|
* * * * * |