RELATING TO CHILDREN.

HB1402

HOUSE OF REPRESENTATIVES

H.B. NO.

1402

THIRTY-THIRD LEGISLATURE, 2025

STATE OF HAWAII

A BILL FOR AN ACT

RELATING
to children
.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

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SECTION
1.
�
The legislature finds that the State
has a paramount interest in protecting all human life.
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Accordingly, any infant born alive, even
after an attempted abortion, is a legal person for all purposes under the
federal and state constitutions, and under other federal and state laws.
�
The legislature also finds that in 2020, the
Center for Disease Control reported 4,382 abortions occurred at twenty-one
weeks or later.
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Without proper legal
protection, newborn infants who have unexpectedly survived an abortion
procedure may be denied appropriate life-saving or life-sustaining medical care
and treatment and be left to die.

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The
legislature further finds that protecting an infant whose live birth occurred
in spite of an attempted abortion does not infringe on a woman's right to
choose or obtain an abortion under existing federal or state law, or interfere
with the ability of licensed health care professionals to provide legal
abortions.

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The purpose of this Act is to ensure
the protection and promotion of the health and well-being of all infants who
survive abortion attempts in the State by:

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(1)
�
Mandating that healthcare providers provide
medically appropriate and reasonable life-saving and life-sustaining medical
care and treatment to all born-alive infants; and

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(2)
�
Establishing penalties for failing to provide
that medical care and treatment.

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SECTION
2.
�
The Hawaii Revised Statutes is
amended by adding a new chapter to be appropriately designated and to read as
follows:

"
CHAPTER

ABORTION SURVIVORS PROTECTION ACT

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�

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-1
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Definitions.
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For the purposes of this chapter, unless the context requires
otherwise:

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"Abortion" means the use or prescription of any
instrument, medicine, drug, or any other substance or device to intentionally:

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(1)
�
End
the life of the unborn child of a woman known to be pregnant; or

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(2)
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Terminate
the pregnancy of a woman known to be pregnant, with an intention other than:

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(A)
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After
viability, to produce a live birth and preserve the life and health of the
child born alive; or

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(B)
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To
remove a dead unborn child.

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"Attempt",
with respect to abortion, means conduct that under the circumstances as the
actor believes them to be, constitutes a substantial step in a course of
conduct planned to culminate in performing an abortion.

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"Born
alive" or "live birth" means the complete expulsion or
extraction of a viable infant from his or her mother, regardless of the state
of gestational development, that after expulsion or extraction, whether or not
the umbilical cord has been cut or the placenta is attached, shows evidence of
life, including:

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(1)
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Breathing;

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(2)
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A heartbeat;

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(3)
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Umbilical cord pulsations;

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(4)
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Definite movement of voluntary muscles; or

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(5)
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Any other evidence of life according to
standard medical practice.

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"Consent"
means the voluntary agreement or acquiescence by a person of age and with the
requisite mental capacity who is not under duress or coercion and who has
knowledge or understanding of the act or action to which the person agreed or
acquiesced.

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"Healthcare
provider" means any person providing aid or assistance to a physician or a
nurse, or any person authorized to provide healthcare to the mother during an
abortion.

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"Infant"
means a human child who has been completely expulsed or extracted from the
child's mother regardless of the stage of gestational development, until the
age of thirty days post birth.

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"Nurse"
means a person who has been or is currently licensed under chapter 457.

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"Physician" means:

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(1)
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A
physician or surgeon licensed to practice medicine or osteopathy pursuant to
chapter 453; or

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(2)
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A
person who is not a physician or surgeon so licensed but nevertheless directly
performs or attempts to perform an abortion.

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"Unborn
child" means a human fetus, beginning at fertilization, until the point of
being born alive.

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�
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-2
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Requirements and responsibilities.
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(a)
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A person shall not deny
or deprive an infant born alive of nourishment with the intent to cause or
allow the death of the infant for any reason.

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(b)
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A person shall not deprive an infant born
alive of medically appropriate and reasonable medical care and treatment or
surgical care.

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(c)
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This section shall not be construed to
prohibit 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:

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(1)
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Is not necessary to save the life of the
infant;

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(2)
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Has a potential risk of harm to the infant's
life or health that outweighs the potential benefit to the infant of the
treatment or care; or

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(3)
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Will do no more than temporarily prolong the
act of dying, as in the case of non-viable infant, when death is imminent.

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(d)
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The physician performing an abortion shall
take all medically appropriate and reasonable steps to preserve the life and
health of an infant born alive.
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If an
abortion is performed in a hospital but a live birth nevertheless occurs, the
physician attending the abortion 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 care and treatment to the infant.

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If an
abortion is performed in a hospital but a live birth nevertheless occurs, the
physician attending the abortion shall provide medically appropriate and
reasonable care and treatment to the infant.

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(e)
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If the physician described in subsection (d)
is unable to perform the duties of subsection (d) because the physician is
assisting the woman on whom the abortion was performed, an attending
physician's assistant, nurse, or other healthcare provider shall assume the
duties described in subsection (d).

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(f)
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Any infant born alive, including one born in
the course of an abortion procedure, shall be treated as a legal person under
the laws of this State, with the same rights to medically appropriate and
reasonable care and treatment.

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(g)
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If, before the abortion, the mother has
stated in writing that she does not wish to maintain custody of the infant in
the event that the infant is born alive, and this writing is not retracted
before the attempted abortion, the infant, if born alive, shall immediately
become a ward under the care of the department of human services.

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(h)
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No person shall use, or authorize to be used,
any born alive infant for any type of scientific research or other kind of
experimentation, except as necessary to protect the life and health of the
infant born alive.

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(i)
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Any physician, nurse, other healthcare
provider, or employee of a hospital, a physician's office or clinic who has
knowledge of failure to comply with this section shall immediately report the
failure to law enforcement.

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�
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-3
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Criminal penalties.
�
(a)
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Any physician, nurse, or other healthcare
provider who intentionally performs an overt act that kills an infant born
alive shall be guilty of the offense of murder in the second degree under
section 707-701.5.

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(b)
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Any physician, nurse, or other healthcare provider who recklessly fails
to provide medically appropriate and reasonable care and treatment to an infant
born alive, where, as a result of that failure, the infant dies, shall be
guilty of the offense of manslaughter under section 707-702.

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(c)
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If any physician, nurse, other healthcare
provider, or person, including a parent or guardian, conceals the corpse of an
infant with the intent to conceal the fact of the infant's birth or to prevent
a determination of whether the infant was born alive or dead, that person shall
be guilt of the offense of concealing the corpse of an infant under section
709-901.

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(d)
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Any physician, nurse, other healthcare
provider, or person, including a parent or guardian, who knowingly violates
section
���
-2(h) shall be fined not more
than $10,000 or imprisoned not more than five years, or both.

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(e)
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The mother of a child born alive may not be
prosecuted for conspiracy in or as an accomplice to violating subsection (b).

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�

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-4
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Civil action.
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(a)
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If
a child is born alive and a healthcare provider violates section
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-2(d), the woman upon whom the abortion was
performed or attempted may, in a civil action against any person who committed
the violation, obtain appropriate relief.
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Any civil action may be based on a claim that the death of or injury to
the infant born alive was a result of simple negligence, gross negligence,
wantonness, willfulness, intentional conduct or another violation of the legal
standard of care.

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(b)
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Appropriate relief in
a civil action under this section includes:

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(1)
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Objective
verifiable money damages occasioned by the violation of subsection
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-2(d);

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(2)
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Damages
up to three times the cost of the abortion or attempted abortion;

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(3)
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Punitive
damages; and

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(4)
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Other
appropriate relief pursuant to applicable law.

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(c)
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Any conviction under section
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-3 shall be admissible in a civil suit as
prima facie

evidence of a failure to provide medically appropriate and
reasonable care and treatment to a born alive infant.

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(d)
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The court shall award a reasonable attorney�s
fee as part of the costs to a prevailing plaintiff in a civil action under this
section.

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(e)
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If a defendant in a civil action under this
subsection prevails and the court finds that the plaintiff's suit was
frivolous, the court shall award a reasonable attorney�s fee in favor of the
defendant against the plaintiff.

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(f)
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Except as provided in subsection (e), in a
civil action under this section, no damages, attorney�s fee or other monetary
relief may be assessed against the woman upon whom the abortion was performed.

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-5
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Professional disciplinary action.
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Failure to comply with the requirements of
this chapter shall provide a basis for professional disciplinary action under
chapter 453, chapter 457, or any other appropriate chapter, or any appropriate
combination thereof, for the suspension or revocation of any license for
physicians, licensed and registered nurses, or other licensed or regulated
persons.
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Any conviction of any person
for any failure to comply with the requirements of this chapter shall result in
the automatic suspension of his or her license for a period of no less than one
year.

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-6
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Construction.
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(a)
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Nothing in this chapter shall be construed to
affirm, deny, expand, or contract any legal status or legal right applicable to
natural persons at any point before being born alive.

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(b)
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Nothing in this chapter shall be construed to
affect existing federal or state law regarding abortion.
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Nothing in this chapter shall be construed to
restrict a woman's right to obtain an abortion pursuant to applicable law, nor
shall it be construed to restrict the ability of any licensed healthcare
providers to perform an abortion in accordance with applicable law.

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(c)
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Nothing in this chapter shall be construed as
creating or recognizing a right to abortion.

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(d)
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Nothing in this chapter shall be construed to
alter generally accepted medical standards."

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SECTION
3
.
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Section 453-8, Hawaii Revised Statutes, is
amended by amending subsection (a) to read as follows:

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"(a)
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In addition to any other actions authorized
by law, any license to practice medicine and surgery may be revoked, limited,
or suspended by the board at any time in a proceeding before the board, or may
be denied, for any cause authorized by law, including [
but not limited to
the following
]:

����
(1)
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Procuring, or
aiding or abetting in procuring, a criminal abortion;

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(2)
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Failure to comply with chapter
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;

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[
(2)
]

(3)
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Employing any person to solicit
patients for one's self;

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[
(3)
]

(4)
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Engaging in false, fraudulent, or
deceptive advertising, including [
but not limited to
]:

���������
(A)
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Making excessive
claims of expertise in one or more medical specialty fields;

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(B)
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Assuring a
permanent cure for an incurable disease; or

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(C)
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Making any
untruthful and improbable statement in advertising one's medical or surgical
practice or business;

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[
(4)
]

(5)
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Being habituated to the excessive use
of drugs or alcohol; or being addicted to, dependent on, or a habitual user of
a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having
similar effects;

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[
(5)
]

(6)
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Practicing medicine while the ability
to practice is impaired by alcohol, drugs, physical disability, or mental
instability;

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[
(6)
]

(7)
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Procuring a license through fraud,
misrepresentation, or deceit, or knowingly permitting an unlicensed person to
perform activities requiring a license;

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[
(7)
]

(8)
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Professional misconduct, hazardous
negligence causing bodily injury to another, or manifest incapacity in the
practice of medicine or surgery;

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[
(8)
]

(9)
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Incompetence or multiple instances of
negligence, including [
but not limited to
] the consistent use of medical
service, which is inappropriate or unnecessary;

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[
(9)
]

(10)
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Conduct or practice contrary to
recognized standards of ethics of the medical profession as adopted by the
Hawaii Medical Association, the American Medical Association, the Hawaii
Association of Osteopathic Physicians and Surgeons, or the American Osteopathic
Association;

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[
(10)
]

(11)
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Violation of the conditions or
limitations upon which a limited or temporary license is issued;

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[
(11)
]

(12)
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Revocation, suspension, or other
disciplinary action by another state or federal agency of a license,
certificate, or medical privilege;

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[
(12)
]

(13)
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Conviction, whether by nolo contendere
or otherwise, of a penal offense substantially related to the qualifications,
functions, or duties of a physician or osteopathic physician, notwithstanding
any statutory provision to the contrary;

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[
(13)
]

(14)
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Violation of chapter 329, the uniform
controlled substances act, or any rule adopted thereunder except as provided in
section 329-122;

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[
(14)
]

(15)
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Failure to report to the board, in
writing, any disciplinary decision issued against the licensee or the applicant
in another jurisdiction within thirty days after the disciplinary decision is
issued; or

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[
(15)
]

(16)
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Submitting to or filing with the board
any notice, statement, or other document required under this chapter, which is
false or untrue or contains any material misstatement or omission of
fact."

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SECTION
4
.
�
Section 457-12, Hawaii Revised Statutes, is
amended by amending subsection (a) to read as follows:

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"(a)
�
In addition to any other actions authorized
by law, the board shall have the power to deny, revoke, limit, or suspend any
license to practice nursing as a registered nurse or as a licensed practical
nurse applied for or issued by the board in accordance with this chapter, and
to fine or to otherwise discipline a licensee for any cause authorized by law,
including [
but not limited to the following
]:

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(1)
�
Fraud or deceit in
procuring or attempting to procure a license to practice nursing as a
registered nurse or as a licensed practical nurse;

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(2)
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Gross immorality;

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(3)
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Unfitness or
incompetence by reason of negligence, habits, or other causes;

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(4)
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Habitual
intemperance, addiction to, or dependency on alcohol or other habit-forming
substances;

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(5)
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Mental
incompetence;

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(6)
�
Unprofessional
conduct as defined by the board in accordance with its own rules;

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(7)
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Wilful or repeated
violation of any of the provisions of this chapter or any rule adopted by the
board;

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(8)
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Revocation,
suspension, limitation, or other disciplinary action by another state of a
nursing license;

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(9)
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Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a nurse, notwithstanding
any statutory provision to the contrary;

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(10)
�
Failure to report
to the board any disciplinary action taken against the licensee in another
jurisdiction within thirty days after the disciplinary action becomes final;

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(11)
�
Submitting to or
filing with the board any notice, statement, or other document required under
this chapter, which is false or untrue or contains any material misstatement of
fact, including a false attestation of compliance with continuing competency requirements;

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(12)
�
Failure to comply with chapter
��
;

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[
(12)
]

(13)
�
Violation of the conditions or
limitations upon which any license is issued; or

��
[
(13)
]

(14)
�
Violation of chapter 329, the uniform
controlled substances act, or any rule adopted thereunder except as provided in
section 329-122."

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SECTION
5
.
�
Section 709-901, Hawaii Revised Statutes, is
amended to read as follows:

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"
�709-901
�

Concealing the corpse of an infant.
�

(1)
�
A person commits the offense
of concealing the corpse of an infant if the person conceals the corpse of a
new-born child with intent to conceal the fact of [
its
]
the child's

birth or to prevent a determination of whether [
it
]
the child
was
born dead or alive.

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(2)
�
If an abortion as defined in section
���
-1 is attempted but a live birth
nevertheless occurs, the surviving infant shall be considered a new-born child
for the purposes of this section.

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[
(2)
]

(3)
�
Concealing the corpse of an
infant is a misdemeanor."

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SECTION 6.

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This Act does not affect rights and
duties that matured, penalties that were incurred, and proceedings that were
begun before its effective date.

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SECTION 7.

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Statutory material to be repealed is
bracketed and stricken. New statutory material is underscored.

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SECTION 8.

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This Act shall take effect on July l,
2025; provided that the amendments made to section 457-12, Hawaii Revised
Statutes, by section 4 of this Act shall not be repealed when that section is
reenacted on June 30, 2025, pursuant to section 6 of Act 66, Session Laws of
Hawaii 2017.

INTRODUCED BY:

_____________________________

Report Title:

Abortion
Survivors; Born Alive Infant; Penalties

Description:

Ensures
the protection and promotion of the health and well-being of all infants born
alive in the State.
�
Mandates medically
appropriate and reasonable life-saving and life-sustaining medical care and
treatment to all born alive infants.
�

Establishes civil and criminal penalties.

The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.