§1061.25. Remains; disposal in accordance with applicable regulations; post-abortion harvesting of fetal organs prohibited; penalties

A.(1) Each physician who performs or induces an abortion which does not result in a live birth shall ensure that the remains of the child are disposed of by interment or cremation, in accordance with the provisions of R.S. 8:651 et seq., except in the case of an abortion induced by the administration of medications when the evacuation of any human remains occurs at a later time, neither in the presence of the inducing physician nor at the facility in which the physician administered the inducing medications.

(2) The department shall promulgate in accordance with the Administrative Procedure Act all rules as are necessary to facilitate the transfer and burial of aborted human remains in a manner consistent with the transfer and burial of unclaimed human remains.

B. With respect to post-abortion harvesting of fetal organs, tissues, and cells, the legislature hereby finds the following:

(1) The United States Supreme Court decision of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973), and its progeny establish a constitutionalized right of a woman to choose to terminate her pregnancy. However, the court has never endorsed a right to harvest the body parts of unborn human beings, whether for profit or donation.

(2) The protocol known commonly as the "dead donor rule" is a longstanding ethical norm that protects the integrity of human organ donation by providing that organ donors must be dead before procurement of organs begins, and that organ procurement itself must not cause the death of the donor. The harvesting of organs, tissues, and cells from unborn children whose deaths are directly caused by induced abortion, as defined in R.S. 40:1061.9, violate the dead donor rule in both respects due to the following conditions:

(a) The unborn children are alive when the fetal repositioning and crushing point decisions are made by the abortion provider with the goal of procuring intact fetal hearts, lungs, livers, brains, and other organs and tissues.

(b) The repositioning of the fetus and crushing above and below the thorax to procure intact fetal organs, tissues, and cells is itself the cause of death of the human being from whom the organs are then harvested.

(c) The human being whose fetal organs are procured does not have the capacity to consent to organ donation, and proxy consent for donation by the unborn child's mother is invalid given that the unborn child is alive at the time the consent forms are signed.

(3) The practice of presenting fetal organ donation forms to pregnant women considering their options constitutes unethical undue influence and coercion, and amounts to an incentive to actively participate in the killing of a living human being for the speculative and attenuated benefit of helping researchers.

(4) Regardless of whether prior proxy consent obtained from the mother is ethical and proper for an unborn child whose death is imminent due to natural miscarriage, it is a gross violation of ethical norms to unduly coerce a mother who is considering pregnancy options to directly participate in the decision to cause the death of her living unborn child for the speculative and attenuated benefit that may come from scientific experimentation.

(5) States are free to ban the practice of selling or donating the bodies of human beings killed by abortion because federal law does not preempt that area of law. Particularly, 42 U.S.C. 289g-1(e) allows for the conduct of fetal tissue transplantation only in accordance with applicable state and local law.

C.(1) Except as provided in Subsection D of this Section, it shall be unlawful for any person or entity to buy, sell, donate, accept, distribute, or otherwise transfer or use for any purpose the intact body of a human embryo or fetus whose death was knowingly caused by an induced abortion, or the human organs, tissues, or cells obtained from a human embryo or fetus whose death was knowingly caused by an induced abortion.

(2) Whoever violates the provisions of this Subsection shall be subject to civil penalties relative to abortion, generally, provided in R.S. 40:1061.29.

D.(1) Nothing in this Section shall be construed to prohibit final disposition of the bodily remains of the aborted human being in accordance with state law, or to prohibit any conduct permitted under state law that is undertaken with any of the following purposes:

(a) The purpose of providing knowledge solely to the mother, such as for pathological or diagnostic purposes.

(b) The purpose of providing knowledge solely to law enforcement officers, such as the case of an autopsy following a feticide.

(2) Nothing in this Section shall be construed to prohibit any transaction related to the donation of bodily remains from a human embryo or fetus whose death was caused by a natural miscarriage or stillbirth, in accordance with the guidelines and prohibitions provided in applicable state and federal law.

E. Nothing in this Section shall be construed to alter generally accepted medical standards, affect existing federal or state law regarding the practice of abortion, or to create or recognize a right to abortion.

Added by Acts 1978, No. 435, §1. Amended by Acts 1980, No. 418, §1; Acts 1981, No. 774, §1, eff. July 23, 1981; Redesignated from R.S. 40:1299.35.14 by HCR 84 of 2015 R.S.; Acts 2016, No. 593, §1; Acts 2018, No. 204, §1, eff. May 15, 2018.