A.R.S. tit. 36 ch. 23 — Arizona Revised Statutes Title 36 Chapter 23 — Protection Of Fetus Or Embryo

36-2301. Duty to promote life of fetus or embryo delivered alive; rules; judicial enforcement; civil action; damages; definitions A. If an abortion is performed and a human fetus or embryo is delivered alive, it is the duty of any physician performing such an abortion and any additional physician in attendance as required by section 36-2301.01 to see that all available means and medical skills are used to promote, preserve and maintain the life of such a fetus or embryo. B. If an abortion is performed and a human fetus or embryo is delivered alive, the physician performing the abortion shall document and report to the department of health services the measures the physician performed to maintain the life of the fetus or embryo. If an abortion is performed and a human fetus or embryo with a lethal fetal condition is delivered alive, the physician performing the abortion shall also document and report to the department of health services the specific lethal fetal condition that was diagnosed before the performance of the abortion and that was confirmed by an examination performed after the human embryo or fetus was delivered alive. C. Before an abortion of a human fetus or embryo diagnosed with a lethal fetal condition, the physician performing the abortion must comply with the requirements of section 36-2158, subsection A and shall also inform the woman, orally and in person, that if the fetus or embryo is delivered alive, the diagnosis must be confirmed after the delivery and the standard of care required in subsection D of this section must be given. D. The director of the department of health services shall prescribe rules requiring an abortion clinic or a hospital that performs or induces an abortion at or after twenty weeks' gestational age as defined in section 36-2151 to establish, document and implement policies and procedures to ensure compliance with this section. At a minimum, these policies and procedures shall require that: 1. In the case of an abortion clinic, a person is designated to contact emergency services immediately at the birth of a fetus or embryo delivered alive to arrange transfer to a hospital. 2. At least one person who is trained in neonatal resuscitation is present in the room where the abortion takes place for any abortion performed or induced at or after twenty weeks' gestational age. 3. Establish a protocol for rapid neonatal resuscitation of a fetus or embryo delivered alive, including assessing respiration and heart rate, clearing secretions, positioning the airway, providing warmth, drying and administering oxygen as needed. E. If an abortion is performed and a human fetus or embryo with a lethal fetal condition is delivered alive, and the protocol for rapid neonatal resuscitation of a fetus or embryo pursuant to subsection D of this section is complied with and any further treatment beyond what is prescribed pursuant to subsection D of this section will do no more than temporarily prolong the act of dying when death is imminent, no further treatment is required by this section. F. A hospital that is not in substantial compliance with the rules or policies and procedures adopted pursuant to this section may be subject to the penalties and sanctions specified in sections 36-427 and 36-431.01. G. An action to enforce this section shall be brought in the name of the state by the attorney general or the county attorney in the superior court in the county in which the violation occurred. H. In addition to other remedies available under the common or statutory law of this state, any of the following persons may file a civil action to obtain appropriate relief for a violation of this section: 1. The mother of the human fetus or embryo delivered alive. 2. The father of the human fetus or embryo delivered alive, unless the pregnancy resulted from the plaintiff's criminal conduct. 3. A maternal grandparent of the human fetus or embryo delivered alive if the mother was not at least eighteen years of age at the time of the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct. I. A civil action filed pursuant to subsection H of this section shall be brought in the superior court in the county in which the woman on whom the abortion was performed resides and may be based on a claim that the failure to see that all available means and medical skills were used to promote, preserve and maintain the life of the human fetus or embryo was a result of simple negligence, gross negligence or wanton, wilful or intentional misconduct or any other legal standard of care. Relief for a civil action filed pursuant to subsection H of this section may include any of the following: 1. Monetary damages for psychological, emotional and physical injuries resulting from the violation of this section. 2. Statutory damages in an amount equal to five thousand dollars or three times the cost of the abortion, whichever is greater. 3. Reasonable attorney fees and costs. J. A civil action brought pursuant to this section must be initiated within six years after the violation occurred. K. For the purposes of this section: 1. "Abortion" has the same meaning prescribed in section 36-2151. 2. "Delivered alive" means the complete expulsion or extraction from the mother of a fetus or embryo, regardless of the state of gestational development, who, after expulsion or extraction, whether or not the umbilical cord has been cut or the placenta is attached, shows any evidence of life, including one or more of the following: (a) Breathing. (b) A heartbeat. (c) Umbilical cord pulsation. (d) Definite movement of voluntary muscles. 3. "Lethal fetal condition" has the same meaning prescribed in section 36-2158. 36-2301.01. Abortion of viable fetus; requirements; definitions A. A physician shall not knowingly perform an abortion of a viable fetus unless: 1. The physician states in writing before the abortion is performed that the abortion is necessary to preserve the life or health of the woman, specifying the medical indications for and the probable health consequences of the abortion. The physician shall attach a copy of this statement to any fetal death report filed pursuant to section 11-593 or fetal death registration filed pursuant to section 36-329. 2. The physician uses the available method or technique of abortion most likely to preserve the life and health of the fetus, unless the use of such method or technique would present a greater risk to the life or health of the woman than the use of another available method or technique. 3. The physician states in writing the available methods or techniques considered, the method or technique used and the reasons for choosing that method or technique. The physician shall attach a copy of this statement to any fetal death report filed pursuant to section 11-593 or fetal death registration filed pursuant to section 36-329. 4. In addition to the physician performing the abortion, there is another physician in attendance who shall take control of and provide immediate medical care for a living child born as a result of the abortion. 5. The physician takes all reasonable steps during the performance of the abortion, consistent with the procedure used and in keeping with good medical practice, to preserve the life and health of the fetus, if these steps do not pose an increased risk to the life or health of the woman on whom the abortion is performed. B. This section does not apply if there is a medical emergency. C. For the purposes of this section and section 36-2301.02: 1. "Abortion" has the same meaning prescribed in section 36-2151. 2. "Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates a pregnancy as to necessitate the immediate abortion of the pregnancy to avoid the woman's death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function. 3. "Physician" means any person licensed under title 32, chapter 13 or 17. 4. "Viable fetus" means the unborn offspring of human beings that has reached a stage of fetal development so that, in the judgment of the attending physician on the particular facts of the case, there is a reasonable probability of the fetus' sustained survival outside the uterus, with or without artificial support. 36-2301.02. Review of ultrasound results A. Beginning on January 1, 2001, a person shall not knowingly perform an abortion after twelve weeks' gestation unless the person estimates the gestational age of the fetus based on biparietal diameter and femur length according to the hadlok measurement system or other equivalent measurement systems using ultrasound examination as provided in rule. B. Beginning on January 1, 2001, a person shall not knowingly perform an abortion after twelve weeks' gestation unless the person ensures that a copy of each ultrasound result taken of a fetus of a woman as a result of a second or third trimester abortion is sent to persons or corporations contracted pursuant to this section. The person performing the abortion shall ensure that the ultrasound result or results from the woman is sent in a manner that is distinguishable from, and not mixed with, any other set of ultrasound results and is accompanied with a copy of any report that notes the estimate of the fetus' gestational age that was made before the abortion. C. The department of health services shall contract with qualified public or private persons or corporations for review of ultrasound results to determine compliance with this section. The department shall issue requests for proposals for the purpose of establishing contracts pursuant to this section. At a minimum, the contracts shall require the contractor to review ultrasound results to verify the accuracy of the fetus' estimated gestational age made before the abortion and to verify that the estimate was made in reasonable compliance with the hadlok measurement system or another equivalent measurement system as provided in rule. D. The contractor shall use a statistically valid method of sampling to conduct the review of ultrasound results from a woman as a result of a second trimester abortion of a fetus of up to eighteen weeks' gestation. The contractor shall conduct a review of all ultrasound results from a woman as a result of an abortion of a fetus of eighteen or more weeks' gestation. E. Beginning on January 1, 2001, on a monthly basis, persons or corporations providing ultrasound review services to the department pursuant to this section shall file a report with the director regarding ultrasound results, noting: 1. Any instances in which the contractor believes there was a significant inaccuracy in the estimated gestational age of the fetus made before the abortion. 2. Any circumstances that, based on the contractor's professional judgment, might explain a significant inaccuracy reported pursuant to paragraph 1 of this subsection. 3. Whether there was reasonable compliance pursuant to subsection C of this section. 4. Whether, based on the results of the review of each ultrasound, the physician should have filed a fetal death certificate with the department of health services as required by section 36-329, subsection C. F. The department of health services shall forward the report or portions of the report within thirty working days to the appropriate professional regulatory boards for their review and appropriate action. G. Except as provided by subsection F of this section, the reports required by this section are confidential and disclosable by the department or its contractor only in aggregate form for statistical or research purposes. Except as provided by subsection F of this section, information relating to any physician, hospital, clinic or other institution shall not be released. Personally identifiable patient information shall not be released by the department or its contractor. 36-2302. Human fetus or embryo; prohibitions; physician-patient privilege inapplicable; definitions A. A person may not use a human fetus or embryo or any part, organ or fluid of the fetus or embryo resulting from an abortion in animal or human research, experimentation or study or for transplantation, except for either of the following: 1. Diagnostic or remedial procedures for the purpose of determining the life or health of the human fetus or embryo or the mother or for preserving the life or health of the human fetus or embryo or the mother. 2. A pathological study. B. A person may not experiment on a human fetus or embryo who is intended to be aborted. C. A person may not perform or offer to perform an abortion for which part or all of the justification or reason is that the human fetus or embryo or any part, organ or fluid of the human fetus or embryo may be used for animal or human research, experimentation or study or for transplantation. D. A person may not knowingly sell, transfer, distribute, give away, accept, use or attempt to use any human fetus or embryo or any part, organ or fluid of the human fetus or embryo resulting from an abortion in violation of this section. E. A person may not aid or abet the sale, transfer, distribution, other unlawful disposition, acceptance, use or attempted use of a human fetus or embryo or any part, organ or fluid of the human fetus or embryo resulting from an abortion in violation of this section. F. The physician-patient privilege as provided in section 13-4062, paragraph 4 does not prevent the production of documents or records relevant to an investigation arising under this section. All documents or records produced in an action brought pursuant to this section shall be inspected by the court in camera, and, before the documents or records are released to the requesting party, the court shall remove the names and other identifying information, if any, of the patients and substitute pseudonyms. G. For the purposes of this section: 1. "Abortion" has the same meaning as prescribed in section 36-2151. 2. "Experimentation" means the use of a human fetus or embryo or any part, organ or fluid of the human fetus or embryo resulting from an abortion in any trial, test, procedure or observation carried out with the goal of verifying, refuting or establishing the validity of a hypothesis. Experimentation does not include a pathological study or a diagnostic or remedial test, procedure or observation that has the purpose of determining the life or health of the human fetus or embryo or preserving the life or health of the human fetus or embryo or the mother. 3. "Pathological study" means the examination of body tissue for diagnostic or forensic purposes. 36-2303. Violation; classification Any person who violates any provision of this article is guilty of a class 5 felony. 36-2311. Definitions In this article, unless the context otherwise requires: 1. "Destructive human embryonic stem cell research" means any research that involves the disaggregation of any human embryo for the purpose of creating human pluripotent stem cells or human pluripotent stem cell lines. 2. "Human-animal hybrid" means any of the following: (a) A human embryo into which a nonhuman cell or cells, or any component part of a nonhuman cell or cells, have been introduced. (b) A hybrid human-animal embryo produced by fertilizing a human egg with a nonhuman sperm. (c) A hybrid human-animal embryo produced by fertilizing a nonhuman egg with human sperm. (d) An embryo produced by introducing a nonhuman nucleus into a human egg. (e) An embryo produced by introducing a human nucleus into a nonhuman egg. (f) An embryo containing at least haploid sets of chromosomes from both a human and a nonhuman life form. (g) A nonhuman life form engineered so that human gametes develop within the body of a nonhuman life form. (h) A nonhuman life form engineered so that it contains a human brain or a brain derived wholly or predominantly from human neural tissues. 3. "Human embryo" means a living organism of the species homo sapiens through the first fifty-six days of its development, excluding any time during which its development has been suspended. 4. "In vitro" means outside the human body. 5. "Purchase or sell" includes an exchange of cash, an in-kind payment or any other valuable financial or nonfinancial consideration. Purchase or sell does not include payment of costs related to donation of a human embryo for the purpose of implantation in the body of a woman. 36-2312. Production of human embryo or human-animal hybrid; purchase or sale; prohibitions; violation; classification; exemptions A. A person shall not intentionally or knowingly create or attempt to create an in vitro human embryo by any means other than fertilization through the combining of a human egg with a human sperm. B. A person shall not intentionally or knowingly: 1. Create or attempt to create a human-animal hybrid. 2. Transfer or attempt to transfer a human embryo into a nonhuman womb. 3. Transfer or attempt to transfer a nonhuman embryo into a human womb. 4. Transport or receive for any purpose a human-animal hybrid. C. A person shall not purchase or sell or offer to purchase or sell an in vitro human embryo and shall not advertise for the purchase or sale of an in vitro human embryo. This subsection does not prohibit payment to a physician by a patient or on a patient's behalf for otherwise lawful services to treat infertility. D. A person who violates this section is guilty of a class 1 misdemeanor. E. This section does not prohibit either of the following if the activity does not violate subsection B or meet the definition of human-animal hybrid: 1. Research involving the use of transgenic animal models containing human genes. 2. Xenotransplantation of human organs, tissues or cells into recipient animals other than animal embryos. 36-2313. Destructive human embryonic stem cell research; violation; classification A. A person shall not intentionally or knowingly engage in destructive human embryonic stem cell research. B. A person who violates this section is guilty of a class 6 felony. 36-2321. Definitions In this article, unless the context otherwise requires: 1. "Abortion" has the same meaning prescribed in section 36-2151. 2. "Attempt to perform or induce an abortion" means to do or to omit doing anything that, under the circumstances as the physician believes them to be, is an act or omission that constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in violation of this article. 3. "Department" means the department of health services. 4. "Gestational age" or "probable gestational age" means the age of an unborn human being as calculated from the first day of the last menstrual period of the pregnant woman. 5. "Human being" means an individual member of the species homo sapiens, from and after the point of conception. 6. "Major bodily function" includes functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. 7. "Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function. 8. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17. 36-2322. Gestational limit on abortion; medical emergency exception; physician reports; confidentiality A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient's chart and, if required, in a report required to be filed with the department as set forth in subsection C of this section. The determination of probable gestational age shall be made according to standard medical practices and techniques used in the medical community. B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks. C. In every case in which a physician performs or induces an abortion on an unborn human being whose gestational age is greater than fifteen weeks, the physician, within fifteen days after the abortion, shall file with the department, on a form supplied by the department, a report containing all of the following: 1. The date the abortion was performed. 2. Specific method of abortion used. 3. The probable gestational age of the unborn human being and the method used to calculate gestational age. 4. A statement that the abortion was necessary because of a medical emergency. 5. The specific medical indications supporting the determination that a medical emergency existed. 6. The probable health consequences of the abortion. 7. The physician's signature as the physician's attestation under oath that the information stated is true and correct to the best of the physician's knowledge. D. Reports required and submitted pursuant to subsection C of this section may not contain the name of the maternal patient on whom the abortion was performed or any other information or identifiers that would make it possible to identify, in any manner or under any circumstances, a woman who obtained or sought to obtain an abortion. 36-2323. Department; forms The department shall create the forms required by section 36-2322 within thirty days after September 24, 2022. The reporting requirements of section 36-2322 on forms published by the department do not apply until ten days after the requisite forms have been made available or September 24, 2022, whichever is later. 36-2324. Violation; classification; exclusion from prosecution A. Any physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B is guilty of a class 6 felony. B. A pregnant woman on whom an abortion is performed, induced or attempted in violation of section 36-2322 may not be prosecuted for conspiracy to commit any violation of this article. 36-2325. Unprofessional conduct; civil penalties A. A physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B commits an act of unprofessional conduct and the physician's license to practice medicine in this state shall be suspended or revoked pursuant to title 32, chapter 13 or 17, as applicable. B. A physician who knowingly or intentionally delivers to the department any report required by section 36-2322, subsection C that contains a false statement is subject to a civil penalty of not more than $10,000 imposed by the department. C. A physician who knowingly or intentionally fails to file with the department any report required by section 36-2322, subsection C is subject to a civil penalty of not more than $10,000 imposed by the department. 36-2326. Enforcement; attorney general The attorney general may bring an action in law or equity to enforce this article on behalf of the director of the department, the Arizona medical board or the board of osteopathic examiners in medicine and surgery.