34-23A-16.2. Abortion--Child born alive--Civil and disciplinary action.
In addition to the damages recoverable under §§34-23A-60 and 34-23A-61, a mother upon whom an abortion is performed or attempted to be performed, whose child is born alive, may obtain money damages for any psychological injury the mother sustained where the physician's negligence in caring for the child following birth was a significant contributing factor in causing her psychological injury.
The child born alive has a cause of action against the physician, the physician's agents, and the abortion facility, for any physical or psychological injury, or both, for any injuries sustained during and as a result of the abortion, and for any additional physical or psychological injury, or both, where the negligence of the physician, the physician's agents, and the abortion facility, in the medical care following birth, was a significant contributing factor.
The money damages for any claim brought pursuant to this section must include all traditionally recognized compensatory and punitive damages recoverable under the laws of this state and punitive damages for intentional disregard for the standard imposed by §34-23A-16.1 and for reasonable attorney's fees.
A physician who fails to meet the requirements of §34-23A-16.1 is liable to the state for a civil penalty of ten thousand dollars for each offense. The attorney general may bring an action to recover that civil penalty and, if successful, shall be awarded reasonable attorney's fees.
A licensed physician, licensed agent, and licensed abortion facility who or that fails to comply with the requirements of §34-23A-16.1, must be reported to the South Dakota Board of Medical and Osteopathic Examiners and that may form the grounds for sanctions, including suspension of the physician's license and, where appropriate, revocation of such license.
Any person having knowledge of a failure to meet the requirements of §34-23A-16.1 may report the failure to the attorney general and, upon request, that person's identity must remain confidential.
Nothing in §34-23A-16.1 may be construed to hold the mother of the child born alive criminally or civilly liable for consenting to an abortion, or for the acts of the physician, the physician's agents, or the abortion facility for violation of §34-23A-16.1 following the child being born alive.
Source: SL 2021, ch 150, § 2.
Structure South Dakota Codified Laws
Title 34 - Public Health and Safety
Chapter 23A - Performance Of Abortions
Section 34-23A-1 - Definition of terms.
Section 34-23A-1.1 - Attempt to perform abortion defined.
Section 34-23A-1.2 - Legislative findings--Termination of life.
Section 34-23A-1.3 - Legislative findings--Relationship between pregnant woman and unborn child.
Section 34-23A-1.4 - Legislative findings--Risks to life and health of pregnant woman.
Section 34-23A-1.5 - Legislative findings--Special protection of rights of pregnant women.
Section 34-23A-1.6 - Legislative findings--Standard of practice requiring informed consent.
Section 34-23A-2 - Abortion lawful only under specified conditions.
Section 34-23A-2.1 - Physician to inform in case of medical emergency.
Section 34-23A-3 - Abortion during first twelve weeks of pregnancy.
Section 34-23A-5 - Abortion following twenty-second week of pregnancy.
Section 34-23A-10.3 - Publication of educational materials.
Section 34-23A-10.5 - Form required by 34-23A-10.1(1) to be prescribed by department.
Section 34-23A-12 - No liability for refusal to perform abortion.
Section 34-23A-16.1 - Child born alive--Preservation of life and health.
Section 34-23A-16.2 - Abortion--Child born alive--Civil and disciplinary action.
Section 34-23A-19 - Performance of abortion--Required reports--Rules.
Section 34-23A-20 - Severability of provisions.
Section 34-23A-21 - Construction of chapter.
Section 34-23A-22 - Cause of action for certain abortions--Amount of damages--Attorney's fees.
Section 34-23A-23 - Anonymity of female plaintiff--Specific written findings.
Section 34-23A-24 - Analyses of maternal mortality.
Section 34-23A-25 - Analyses of pregnancy outcomes.
Section 34-23A-26 - Publication of findings on maternal mortality and pregnancy outcomes.
Section 34-23A-27 - Partial-birth abortion prohibited--Violation a felony.
Section 34-23A-28 - Application of partial-birth abortion prohibition.
Section 34-23A-29 - Civil action for death of fetus or infant in partial-birth abortion.
Section 34-23A-30 - Money damages in partial-birth abortion.
Section 34-23A-31 - Prosecution of woman upon whom partial-birth abortion performed.
Section 34-23A-32 - Partial-birth abortion defined.
Section 34-23A-33 - Fetus and infant defined.
Section 34-23A-34 - Physician's reporting form--Contents.
Section 34-23A-35 - Submission of physician's information report.
Section 34-23A-36 - Annual public report--Information included.
Section 34-23A-37 - Information collection form.
Section 34-23A-38 - Submission of information collection form.
Section 34-23A-39 - Reporting form for use of notice described in § 34-23A-7.
Section 34-23A-40 - Submission of reporting form.
Section 34-23A-41 - Penalty for failure to submit reporting form.
Section 34-23A-42 - Failure to submit reporting form a misdemeanor.
Section 34-23A-43 - Department to ensure compliance--Inspection.
Section 34-23A-44 - Department to ensure anonymity--Confidentiality of communication.
Section 34-23A-45 - "Induced abortion" defined.
Section 34-23A-46 - Licensing of abortion facilities.
Section 34-23A-47 - Exceptions to abortion facility license requirement.
Section 34-23A-49 - Compliance inspections.
Section 34-23A-49.1 - Inspection information to be posted on department's public website.
Section 34-23A-50 - Fees to be deposited in abortion facility licensing fund.
Section 34-23A-51 - Promulgation of rules--Minimum standards for abortion facilities.
Section 34-23A-52.1 - Medical emergency exception.
Section 34-23A-53 - Definition of terms.
Section 34-23A-54 - Legislative findings.
Section 34-23A-55 - Duties of physician in addition to common law.
Section 34-23A-56 - Scheduling of abortion--Prior requirements.
Section 34-23A-57 - Patient's written signed statement.
Section 34-23A-58 - Registry of pregnancy help centers.
Section 34-23A-58.1 - Certification of conditions by pregnancy help centers.
Section 34-23A-58.2 - Pregnancy help centers placed on registry before January 1, 2012.
Section 34-23A-58.3 - Pregnancy help centers placed on registry after January 1, 2012.
Section 34-23A-59 - Pregnancy help center consultations.
Section 34-23A-59.1 - Licensed professionals required at pregnancy help centers.
Section 34-23A-59.2 - Release of confidential information as misdemeanor.
Section 34-23A-60 - Civil action for failure to comply with §§ 34-23A-56 and 34-23A-57.
Section 34-23A-61 - Civil action for failure to comply with chapter.
Section 34-23A-62 - Repeal not implied.
Section 34-23A-63 - Definitions regarding sex-selective abortions.
Section 34-23A-64 - Sex-selective abortions prohibited--Felony.
Section 34-23A-65 - Repeal not implied.
Section 34-23A-67 - Legislative findings as to unborn child capable of experiencing pain.
Section 34-23A-68 - Definitions regarding unborn child capable of experiencing pain.
Section 34-23A-69 - Abortion of unborn child capable of feeling pain prohibited--Felony--Exceptions.
Section 34-23A-71 - Intent of pregnant mother to inflict self-harm not medical emergency.
Section 34-23A-73 - Repeal not implied.
Section 34-23A-81 - Legislative finding regarding noncompliance with subsection 34-23A-10.1(1)(b).
Section 34-23A-89 - Definition--Down syndrome.
Section 34-23A-90 - Down syndrome--Abortion prohibited--Penalty.
Section 34-23A-91 - Intentional, knowing, or negligent failure to comply--Civil action.