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20-16-604. Born-alive infant protection — Cause of action — Definitions.
Arkansas Code — all titles (historical 2020) · legal_authorities
20-16-604. Born-alive infant protection — Cause of action — Definitions.
(a) As used in this section:
(1)(A) “Abortion” means the act of using or prescribing any instrument, medicine, drug, or other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child.
(B) A use, prescription, or means under this subdivision (a)(1) is not an abortion if the use, prescription, or means is performed with the intent to:
(i) Save the life or preserve the health of the unborn child;
(ii) Remove a dead unborn child caused by spontaneous abortion; or
(iii) Remove an ectopic pregnancy;
(2) “Infant” means a child who has been completely expulsed or extracted from the mother, regardless of the stage of gestational development, until thirty (30) days after the birth; and
(3) “Infant who is born alive” means the complete expulsion or extraction of an infant from a mother, regardless of the state of gestational development, who shows any evidence of life, including without limitation:
(A) Breathing;
(B) Heartbeat;
(C) Umbilical cord pulsation; or
(D) Definite movement of voluntary muscles.
(b) A physician, other healthcare professional, or other 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, including without limitation:
(1) The infant was born with a physical, intellectual, or developmental disability;
(2) The infant was not wanted by the parent or guardian; or
(3) The infant was born alive by natural or artificial means.
(c) A physician, other healthcare professional, or other person shall not deprive an infant o
Source: Arkansas Code — historical release 78 (November 6, 2020) · 20-16-604
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. A text match is a research starting point; applicability is not established.
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Stable record: arkansas_code:legal_authorities:20-16-604
Source file: gov.ar.code.title.20.odt
Pages: Not recorded – Not recorded
Passage SHA-256: db8e411239aee3542352faa8c28af9f1a479d6c6c416665ca6771033ab6608f8
Source location: content.xml paragraph 12758
Stored source content
20-16-604. Born-alive infant protection — Cause of action — Definitions.
(a) As used in this section:
(1)(A) “Abortion” means the act of using or prescribing any instrument, medicine, drug, or other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child.
(B) A use, prescription, or means under this subdivision (a)(1) is not an abortion if the use, prescription, or means is performed with the intent to:
(i) Save the life or preserve the health of the unborn child;
(ii) Remove a dead unborn child caused by spontaneous abortion; or
(iii) Remove an ectopic pregnancy;
(2) “Infant” means a child who has been completely expulsed or extracted from the mother, regardless of the stage of gestational development, until thirty (30) days after the birth; and
(3) “Infant who is born alive” means the complete expulsion or extraction of an infant from a mother, regardless of the state of gestational development, who shows any evidence of life, including without limitation:
(A) Breathing;
(B) Heartbeat;
(C) Umbilical cord pulsation; or
(D) Definite movement of voluntary muscles.
(b) A physician, other healthcare professional, or other 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, including without limitation:
(1) The infant was born with a physical, intellectual, or developmental disability;
(2) The infant was not wanted by the parent or guardian; or
(3) The infant was born alive by natural or artificial means.
(c) A physician, other healthcare professional, or other person shall not deprive an infant of medically appropriate and reasonable medical care and treatment or surgical care.
(d) This section does not prevent an infant's parent or legal guardian from refusing to give consent to medical treatment or surgical care that is not medically necessary or reasonable, including without limitation, care or treatment that:
(1) Is not necessary to save the life of the infant;
(2) Has a potential risk to the life or health of the infant that outweighs the potential benefit to the infant; or
(3) Is treatment that will do no more than temporarily prolong the act of dying when death is imminent.
(e)(1) A physician performing an abortion shall take all medically appropriate and reasonable steps to preserve the life and health of an infant who is born alive.
(2) If an abortion performed in a hospital results in a live birth, the attending physician shall:
(A) Provide immediate medical care to the infant;
(B) Inform the mother of the live birth;
(C) 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; and
(D) Report the abortion resulting in a live birth to the Department of Health.
(3) If an abortion performed in a healthcare facility other than a hospital results in a live birth, the attending physician shall:
(A) Provide immediate medical care to the infant;
(B) Call 911 for an emergency transfer of the infant to the hospital for medically appropriate and reasonable care and treatment for the infant; and
(C) Report the abortion resulting in a live birth to the department.
(4) The department shall report and publish the number of abortions resulting in a live birth annually.
(f) If a physician described in subsection (e) of this section is unable to perform the duties described in subsection (e) of this section because the physician is assisting the woman who received an abortion, the attending physician's assistant, nurse, or other healthcare professional shall assume the duties outlined in subsection (e) of this section.
(g) An infant who is born alive shall be treated as an individual under the laws of this state with the same rights to medically appropriate reasonable care and treatment that an infant born prematurely would have.
(h) The infant who is born alive upon birth immediately shall become a ward of the state if:
(1) Before the abortion, the pregnant woman, or if married, the pregnant woman and her spouse, have stated in writing that they do not wish to keep the infant if the abortion results in a live birth; and
(2) The writing described in subdivision (h)(1) of this section is not retracted before the abortion.
(i)(1) An infant who is born alive shall not be used for any type of scientific research or other kind of experimentation except as necessary to protect or preserve the life and health of the infant who is born alive.
(2) A violation of subdivision (i)(1) of this section is a Class D felony.
(j) Failure to comply with this section shall provide a basis for:
(1) A civil action for compensatory and punitive damages which may include a medical malpractice action under § 16-114-201 et seq.;
(2) Professional disciplinary action by the appropriate healthcare licensing board for the suspension or revocation of a license for a healthcare professional for at least one (1) year;
(3) Recovery for the parent of the infant or the parent or legal guardian of the pregnant woman, if the pregnant woman is a minor, for the wrongful death of the infant under § 16-62-102; and
(4) Injunction from future acts prohibited by this section.
(k) This section does not:
(1) Create or recognize a right to abortion;
(2) Affect existing federal or state law regarding abortion; or
(3) Alter generally accepted medical standards.
(l) A physician or other person who purposefully or recklessly violates this section is guilty of a Class A misdemeanor.
Cross-references
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Arkansas Code — all titles (historical 2020) · legal_authorities
16-114-201. Definitions.
As used in this subchapter, unless the context otherwise requires:
(1) “Action for medical injury” means all actions against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury as defined in this section;
(2) “Medical care provider” means a physician, certified registered nurse anesthetist, physician's assistant, nurse, optometrist, chiropractor, physical therapist, dentist, podiatrist, pharmacist, veterinarian, hospital, nursing home, community mental health center, psychologist, clinic, or not-for-profit home healthcare agency licensed by the state or otherwise lawfully providing professional medical care or services, or an officer, employee, or agent thereof acting in the course and scope of employment in the providing of such medical care or medical services; and
(3) “Medical injury” or “injury” means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider to a patient or resident, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.
Source: Arkansas Code — historical release 78 (November 6, 2020) · 16-114-201
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. The source passage cites 16-114-201. This identifies an authority to review, not proof of applicability.
Arkansas Code — all titles (historical 2020) · legal_authorities
16-62-102. Wrongful death actions — Survival.
(a)(1) Whenever the death of a person or an unborn child as defined in § 5-1-102 is caused by a wrongful act, neglect, or default and the act, neglect, or default would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued, then and in every such case, the person or company or corporation that would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person or the unborn child as defined in § 5-1-102 injured, and although the death may have been caused under such circumstances as amount in law to a felony.
(2) The cause of action created in this subsection shall survive the death of the person wrongfully causing the death of another and may be brought, maintained, or revived against the personal representatives of the person wrongfully causing the death of another.
(3) A person is not liable under this subsection when the death of the unborn child results from:
(A) A legal abortion, including an abortion performed to remove an ectopic pregnancy or other nonviable pregnancy where the embryo is not going to develop further;
(B) The fault of the pregnant woman carrying the unborn child;
(C) Assisted reproduction technology activity, procedure, or treatment;
(D) Actions occurring before transfer to the uterus of the woman of an embryo created through in vitro fertilization; or
(E) A woman or her healthcare provider using contraception approved by the United States Food and Drug Administration.
(b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at
Source: Arkansas Code — historical release 78 (November 6, 2020) · 16-62-102
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. The source passage cites 16-62-102. This identifies an authority to review, not proof of applicability.