85R21727 LED-D
By: Burkett, Bailes, Laubenberg, et al. H.B. No. 200
Substitute the following for H.B. No. 200:
By: Cook C.S.H.B. No. 200
A BILL TO BE ENTITLED
AN ACT
relating to certain prohibited abortions and the treatment and
disposition of a human fetus, human fetal tissue, and embryonic and
fetal tissue remains; creating a civil cause of action; imposing a
civil penalty; creating criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 171, Health and Safety Code, is amended
by adding Subchapter F to read as follows:
SUBCHAPTER F. PARTIAL-BIRTH ABORTIONS
Sec. 171.101. DEFINITIONS. In this subchapter:
(1) "Partial-birth abortion" means an abortion in
which the person performing the abortion:
(A) for the purpose of performing an overt act
that the person knows will kill the partially delivered living
fetus, deliberately and intentionally vaginally delivers a living
fetus until:
(i) for a head-first presentation, the
entire fetal head is outside the body of the mother; or
(ii) for a breech presentation, any part of
the fetal trunk past the navel is outside the body of the mother;
and
(B) performs the overt act described in Paragraph
(A), other than completion of delivery, that kills the partially
delivered living fetus.
(2) "Physician" means an individual who is licensed to
practice medicine in this state, including a medical doctor and a
doctor of osteopathic medicine.
Sec. 171.102. PARTIAL-BIRTH ABORTIONS PROHIBITED. (a) A
physician or other person may not knowingly perform a partial-birth
abortion.
(b) Subsection (a) does not apply to a physician who
performs a partial-birth abortion that is necessary to save the
life of a mother whose life is endangered by a physical disorder,
physical illness, or physical injury, including a life-endangering
physical condition caused by or arising from the pregnancy.
Sec. 171.103. CRIMINAL PENALTY. A person who violates
Section 171.102 commits an offense. An offense under this section
is a state jail felony.
Sec. 171.104. CIVIL LIABILITY. (a) Except as provided by
Subsection (b), the father of the fetus or a parent of the mother of
the fetus, if the mother is younger than 18 years of age at the time
of the partial-birth abortion, may bring a civil action to obtain
appropriate relief, including:
(1) money damages for physical injury, mental anguish,
and emotional distress; and
(2) exemplary damages equal to three times the cost of
the partial-birth abortion.
(b) A person may not bring or maintain an action under this
section if:
(1) the person consented to the partial-birth
abortion; or
(2) the person's criminally injurious conduct resulted
in the pregnancy.
Sec. 171.105. HEARING. (a) A physician who is the subject
of a criminal or civil action for a violation of Section 171.102 may
request a hearing before the Texas Medical Board on whether the
physician's conduct was necessary to save the life of a mother whose
life was endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical condition
caused by or arising from the pregnancy.
(b) The board's findings under Subsection (a) are
admissible in any court proceeding against the physician arising
from that conduct. On the physician's motion, the court shall delay
the beginning of a criminal or civil trial for not more than 60 days
for the hearing to be held under Subsection (a).
Sec. 171.106. APPLICABILITY. A woman on whom a
partial-birth abortion is performed or attempted in violation of
this subchapter may not be prosecuted under this subchapter or for
conspiracy to commit a violation of this subchapter.
SECTION 2. Subtitle H, Title 2, Health and Safety Code, is
amended by adding Chapter 173 to read as follows:
CHAPTER 173. DONATION OF HUMAN FETAL TISSUE
Sec. 173.001. DEFINITIONS. In this chapter:
(1) "Authorized facility" means:
(A) a hospital licensed under Chapter 241;
(B) a hospital maintained or operated by this
state or an agency of this state;
(C) an ambulatory surgical center licensed under
Chapter 243; or
(D) a birthing center licensed under Chapter 244.
(2) "Human fetal tissue" means any gestational human
organ, cell, or tissue from an unborn child. The term does not
include supporting cells or tissue derived from a pregnancy,
associated maternal tissue that is not part of the unborn child, the
umbilical cord, or the placenta.
Sec. 173.002. APPLICABILITY. This chapter does not apply
to:
(1) human fetal tissue obtained for diagnostic or
pathological testing;
(2) human fetal tissue obtained for a criminal
investigation;
(3) human fetal tissue or human tissue obtained during
pregnancy or at delivery of a child, provided the tissue is obtained
by an accredited public or private institution of higher education
for use in research approved by an institutional review board or
another appropriate board, committee, or body charged with
oversight applicable to the research; or
(4) cell lines derived from human fetal tissue or
human tissue existing on September 1, 2017, that are used by an
accredited public or private institution of higher education in
research approved by an institutional review board or another
appropriate board, committee, or body charged with oversight
applicable to the research.
Sec. 173.003. ENFORCEMENT. (a) The department shall
enforce this chapter.
(b) The attorney general, on request of the department or a
local law enforcement agency, may assist in the investigation of a
violation of this chapter.
Sec. 173.004. PROHIBITED DONATION. A person may not donate
human fetal tissue except as authorized by this chapter.
Sec. 173.005. DONATION BY AUTHORIZED FACILITY. (a) Only
an authorized facility may donate human fetal tissue. An
authorized facility may donate human fetal tissue only to an
accredited public or private institution of higher education for
use in research approved by an institutional review board or
another appropriate board, committee, or body charged with
oversight applicable to the research.
(b) An authorized facility may not donate human fetal tissue
obtained from an elective abortion.
Sec. 173.006. INFORMED CONSENT REQUIRED. An authorized
facility may not donate human fetal tissue under this chapter
unless the facility has obtained the written, voluntary, and
informed consent of the woman from whose pregnancy the fetal tissue
is obtained. The consent must be provided on a standard form
prescribed by the department.
Sec. 173.007. CRIMINAL PENALTY. (a) A person commits an
offense if the person:
(1) offers a woman monetary or other consideration to:
(A) have an abortion for the purpose of donating
human fetal tissue; or
(B) consent to the donation of human fetal
tissue; or
(2) knowingly or intentionally solicits or accepts
tissue from a fetus gestated solely for research purposes.
(b) An offense under this section is a Class A misdemeanor
punishable by a fine of not more than $10,000.
(c) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section.
Sec. 173.008. RECORD RETENTION. Unless another law
requires a longer period of record retention, an authorized
facility may not dispose of any medical record relating to a woman
who consents to the donation of human fetal tissue before:
(1) the seventh anniversary of the date consent was
obtained under Section 173.006; or
(2) if the woman was younger than 18 years of age on
the date consent was obtained under Section 173.006, the later of:
(A) the woman's 23rd birthday; or
(B) the seventh anniversary of the date consent
was obtained.
Sec. 173.009. ANNUAL REPORT. An authorized facility that
donates human fetal tissue under this chapter shall submit an
annual report to the department that includes for each donation:
(1) the specific type of fetal tissue donated; and
(2) the accredited public or private institution of
higher education that received the donation.
SECTION 3. 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 disposition of embryonic and fetal tissue
remains.
Sec. 697.002. DEFINITIONS. In this chapter:
(1) "Cremation" means the irreversible process of
reducing remains to bone fragments through direct flame, 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 that
terminates in the death of the embryo or fetus and for which the
issuance of a fetal death certificate is not required by state 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 OTHER LAW. Embryonic and
fetal tissue remains are not pathological waste under state law.
Unless 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. 697.004. DISPOSITION OF EMBRYONIC AND FETAL TISSUE
REMAINS. (a) Subject to Section 241.010, 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 that are passed
or delivered at the facility by:
(1) interment;
(2) cremation;
(3) incineration followed by interment; or
(4) 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 697.005 in an effort to
offset the cost associated with burial or cremation of the
embryonic and fetal tissue remains of an unborn child.
(d) Notwithstanding any other law, the umbilical cord,
placenta, gestational sac, blood, or body fluids from a pregnancy
terminating in the death of the embryo or fetus for which the
issuance of a fetal death certificate is not required by state law
may be disposed of in the same manner as and with the embryonic and
fetal tissue remains from that same pregnancy as authorized by this
chapter.
Sec. 697.005. BURIAL OR CREMATION ASSISTANCE REGISTRY. 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, health care facility, or agent of a physician or
health care facility.
Sec. 697.006. ETHICAL FETAL REMAINS GRANT PROGRAM. The
department shall develop a grant program that uses private
donations to provide financial assistance for the costs associated
with disposing of embryonic and fetal tissue remains.
Sec. 697.007. SUSPENSION OR REVOCATION OF LICENSE. The
department may suspend or revoke the license of a health care
facility that violates this chapter or a rule adopted under this
chapter.
Sec. 697.008. CIVIL PENALTY. (a) A person that violates
this chapter or a rule adopted under this chapter is liable for a
civil penalty in an amount of $1,000 for each violation.
(b) The attorney general, at the request of the department,
may sue 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.
Sec. 697.009. RULES. The executive commissioner shall
adopt rules to implement this chapter.
SECTION 4. Section 164.052(a), Occupations Code, is amended
to read as follows:
(a) A physician or an applicant for a license to practice
medicine commits a prohibited practice if that person:
(1) submits to the board a false or misleading
statement, document, or certificate in an application for a
license;
(2) presents to the board a license, certificate, or
diploma that was illegally or fraudulently obtained;
(3) commits fraud or deception in taking or passing an
examination;
(4) uses alcohol or drugs in an intemperate manner
that, in the board's opinion, could endanger a patient's life;
(5) commits unprofessional or dishonorable conduct
that is likely to deceive or defraud the public, as provided by
Section 164.053, or injure the public;
(6) uses an advertising statement that is false,
misleading, or deceptive;
(7) advertises professional superiority or the
performance of professional service in a superior manner if that
advertising is not readily subject to verification;
(8) purchases, sells, barters, or uses, or offers to
purchase, sell, barter, or use, a medical degree, license,
certificate, or diploma, or a transcript of a license, certificate,
or diploma in or incident to an application to the board for a
license to practice medicine;
(9) alters, with fraudulent intent, a medical license,
certificate, or diploma, or a transcript of a medical license,
certificate, or diploma;
(10) uses a medical license, certificate, or diploma,
or a transcript of a medical license, certificate, or diploma that
has been:
(A) fraudulently purchased or issued;
(B) counterfeited; or
(C) materially altered;
(11) impersonates or acts as proxy for another person
in an examination required by this subtitle for a medical license;
(12) engages in conduct that subverts or attempts to
subvert an examination process required by this subtitle for a
medical license;
(13) impersonates a physician or permits another to
use the person's license or certificate to practice medicine in
this state;
(14) directly or indirectly employs a person whose
license to practice medicine has been suspended, canceled, or
revoked;
(15) associates in the practice of medicine with a
person:
(A) whose license to practice medicine has been
suspended, canceled, or revoked; or
(B) who has been convicted of the unlawful
practice of medicine in this state or elsewhere;
(16) performs or procures a criminal abortion, aids or
abets in the procuring of a criminal abortion, attempts to perform
or procure a criminal abortion, or attempts to aid or abet the
performance or procurement of a criminal abortion;
(17) directly or indirectly aids or abets the practice
of medicine by a person, partnership, association, or corporation
that is not licensed to practice medicine by the board;
(18) performs an abortion on a woman who is pregnant
with a viable unborn child during the third trimester of the
pregnancy unless:
(A) the abortion is necessary to prevent the
death of the woman;
(B) the viable unborn child has a severe,
irreversible brain impairment; or
(C) the woman is diagnosed with a significant
likelihood of suffering imminent severe, irreversible brain damage
or imminent severe, irreversible paralysis;
(19) performs an abortion on an unemancipated minor
without the written consent of the child's parent, managing
conservator, or legal guardian or without a court order, as
provided by Section 33.003 or 33.004, Family Code, unless the
abortion is necessary due to a medical emergency, as defined by
Section 171.002, Health and Safety Code;
(20) otherwise performs an abortion on an
unemancipated minor in violation of Chapter 33, Family Code; or
(21) performs or induces or attempts to perform or
induce an abortion in violation of Subchapter C or F, Chapter 171,
Health and Safety Code.
SECTION 5. Section 164.055(b), Occupations Code, is amended
to read as follows:
(b) The sanctions provided by Subsection (a) are in addition
to any other grounds for refusal to admit persons to examination
under this subtitle or to issue a license or renew a license to
practice medicine under this subtitle. The criminal penalties
provided by Section 165.152 do not apply to a violation of Section
170.002, Health and Safety Code, or Subchapter C or F, Chapter 171,
Health and Safety Code.
SECTION 6. Section 48.02(a), Penal Code, is amended to read
as follows:
(a) In this section, "human ["Human] organ" means the human
kidney, liver, heart, lung, pancreas, eye, bone, skin, [fetal
tissue,] or any other human organ or tissue, but does not include
hair or blood, blood components (including plasma), blood
derivatives, or blood reagents. The term does not include human
fetal tissue as defined by Section 48.03.
SECTION 7. Chapter 48, Penal Code, is amended by adding
Section 48.03 to read as follows:
Sec. 48.03. PROHIBITION ON PURCHASE AND SALE OF HUMAN FETAL
TISSUE. (a) In this section, "human fetal tissue" has the meaning
assigned by Section 173.001, Health and Safety Code.
(b) A person commits an offense if the person knowingly
offers to buy, offers to sell, acquires, receives, sells, or
otherwise transfers any human fetal tissue for economic benefit.
(c) An offense under this section is a state jail felony.
(d) It is a defense to prosecution under this section that
the actor:
(1) is an employee of or under contract with an
accredited public or private institution of higher education; and
(2) acquires, receives, or transfers human fetal
tissue solely for the purpose of fulfilling a donation authorized
by Section 173.005, Health and Safety Code.
(e) This section does not apply to:
(1) human fetal tissue acquired, received, or
transferred solely for diagnostic or pathological testing;
(2) human fetal tissue acquired, received, or
transferred solely for the purposes of a criminal investigation;
(3) human fetal tissue acquired, received, or
transferred solely for the purpose of disposing of the tissue in
accordance with state law or rules applicable to the disposition of
human fetal tissue remains;
(4) human fetal tissue or human tissue acquired during
pregnancy or at delivery of a child, provided the tissue is acquired
by an accredited public or private institution of higher education
for use in research approved by an institutional review board or
another appropriate board, committee, or body charged with
oversight applicable to the research; or
(5) cell lines derived from human fetal tissue or
human tissue existing on September 1, 2017, that are used by an
accredited public or private institution of higher education in
research approved by an institutional review board or another
appropriate board, committee, or body charged with oversight
applicable to the research.
(f) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section.
SECTION 8. (a) Not later than December 1, 2017, the
executive commissioner of the Health and Human Services Commission
shall adopt any rules necessary to implement Chapters 173 and 697,
Health and Safety Code, as added by this Act.
(b) The Department of State Health Services shall:
(1) not later than October 1, 2017, establish the
grant program required by Section 697.006, Health and Safety Code,
as added by this Act;
(2) not later than December 1, 2017, prescribe the
standard consent form required by Section 173.006, Health and
Safety Code, as added by this Act; and
(3) not later than February 1, 2018, begin to award
grants under the grant program described by Subdivision (1) of this
subsection.
SECTION 9. (a) Subchapter F, Chapter 171, Health and
Safety Code, as added by this Act, applies only to an abortion
performed on or after the effective date of this Act. An abortion
performed before the effective date of this Act 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) Sections 173.003, 173.004, 173.005, and 173.006, Health
and Safety Code, as added by this Act, apply to a donation of human
fetal tissue that occurs on or after the effective date of this Act,
regardless of whether the human fetal tissue was acquired before,
on, or after that date.
(c) An authorized facility is not required to make an
initial annual report under Section 173.009, Health and Safety
Code, as added by this Act, before January 1, 2019.
(d) 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.
(e) Chapter 48, Penal Code, as amended by this Act, applies
only to an offense committed on or after the effective date of this
Act. An offense committed before the effective date of this Act is
governed by the law in effect on the date the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this subsection, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 10. This Act takes effect September 1, 2017.