What is the Federal Law for Born-Alive Abortion Survivors?


In 2002, the federal Born-Alive Infants Protections Act clarified that if an abortion results in the live birth of an infant, the infant is a legal person for all purposes under the laws of the United States and is entitled to all the protections of such laws. However, it did not create additional, specific protections for children who survive an abortion.

SB405 builds on the 2002 federal law by creating specific state requirements for the treatment of abortion survivors.

Additional Protections in SB405 

The staff for the State’s nonpartisan Legislative Analysis Division found section 1 of the bill would add Article 1L to Chapter 90 of the General Statutes.

  • G.S. 90-21.130 would create definitions for "abortion," "attempt to perform an abortion," and "born alive."
  • G.S. 90-21.131 would clarify that an infant who survives an abortion is a legal person. Infants born alive in a hospital, clinic, or other healthcare facilities would have the same claims to protection that any other patient at the facility would have.
  • G.S. 90-21.132 would require healthcare providers to exercise the same degree of care for an infant born alive after an abortion attempt that they would for any other child born alive at the same gestational age. It would also require providers to ensure that infants born alive after an abortion attempt are immediately transported to a hospital.
  • G.S. 90-21.133 would require healthcare providers to report violations of G.S. 90-21.132 to the appropriate authorities.
  • G.S. 90-21.134 would prohibit the prosecution of mothers of infants born alive after attempted abortions for violations of G.S. 90-21.132 and G.S. 90-21.133.
  • G.S 90-21.135 would make violations of G.S. 90-21.132 and G.S. 90-21.133 Class D felonies. An overt act that kills a child born alive after an attempted abortion would be punishable as murder under G.S. 14-17(c).
  • G.S. 90-21.136 would allow a woman upon whom an abortion was attempted in violation of Article 1L to seek civil damages that include objectively verifiable monetary damages, statutory damages equal to three times the cost of the abortion, punitive damages, and attorneys' fees.

Section 2 would amend G.S. 14-17(c) to clarify that murder includes an intentional, overt act that kills a child born alive.

Section 3 would clarify that prosecutions for offenses committed before the act becomes effective are not abated or affected by the act.

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