S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3601
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2023
                                ___________
 
 Introduced  by  M.  of  A. MANKTELOW, DeSTEFANO, MORINELLO, BLANKENBUSH,
   FITZPATRICK, MILLER, BRABENEC, DiPIETRO,  REILLY,  BYRNES,  McDONOUGH,
   SMITH,  MIKULIN,  HAWLEY,  SMULLEN  --  read  once and referred to the
   Committee on Health
 
 AN ACT to amend the public health law, in relation to  establishing  the
   born alive abortion survivors' protection act
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The public health law is amended by adding  a  new  section
 2599-bb-1 to read as follows:
   §  2599-BB-1.  THE  BORN  ALIVE ABORTION SURVIVORS' PROTECTION ACT. 1.
 ANY HEALTH CARE PRACTITIONER PRESENT AT THE TIME THE CHILD IS BORN ALIVE
 DURING AN ABORTION OR ATTEMPTED ABORTION PROCEDURE SHALL:
   (A) EXERCISE THE SAME DEGREE OF PROFESSIONAL SKILL,  CARE,  AND  DILI-
 GENCE TO PRESERVE THE LIFE AND HEALTH OF THE CHILD AS A REASONABLY DILI-
 GENT  AND  CONSCIENTIOUS  HEALTH  CARE  PRACTITIONER WOULD RENDER TO ANY
 OTHER CHILD BORN ALIVE AT THE SAME GESTATIONAL AGE; AND
   (B) FOLLOWING THE EXERCISE OF  SKILL,  CARE,  AND  DILIGENCE  REQUIRED
 UNDER  PARAGRAPH  (A)  OF  THIS  SUBDIVISION, ENSURE THAT THE CHILD BORN
 ALIVE IS IMMEDIATELY TRANSPORTED AND ADMITTED TO A HOSPITAL.
   2. A HEALTH CARE PRACTITIONER LICENSED, CERTIFIED, OR AUTHORIZED UNDER
 TITLE EIGHT OF THE EDUCATION LAW, ACTING WITHIN HIS OR HER LAWFUL  SCOPE
 OF  PRACTICE, WHO HAS KNOWLEDGE OF A FAILURE TO COMPLY WITH THE REQUIRE-
 MENTS OF SUBDIVISION ONE OF THIS SECTION SHALL  IMMEDIATELY  REPORT  THE
 FAILURE TO AN APPROPRIATE STATE OR FEDERAL LAW ENFORCEMENT AGENCY, OR TO
 BOTH.
   A VIOLATION OF THIS SUBDIVISION IS A CLASS A MISDEMEANOR.
   3. AN INDIVIDUAL THAT INTENTIONALLY PERFORMS OR ATTEMPTS TO PERFORM AN
 OVERT ACT THAT KILLS A CHILD BORN ALIVE DESCRIBED UNDER PARAGRAPH (A) OF
 SUBDIVISION ONE OF THIS SECTION, SHALL BE GUILTY UNDER SECTION 125.25 OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04257-01-3
 A. 3601                             2
              

 
 110.05  OF THE PENAL LAW FOR INTENTIONALLY KILLING OR ATTEMPTING TO KILL
 A HUMAN BEING.
   4. THE MOTHER OF A CHILD BORN ALIVE DESCRIBED UNDER SUBDIVISION ONE OF
 THIS  SECTION  MAY NOT BE PROSECUTED FOR A VIOLATION OF THIS SECTION, AN
 ATTEMPT TO VIOLATE THIS SECTION, A CONSPIRACY TO VIOLATE  THIS  SECTION,
 OR  AN  OFFENSE  UNDER SUBDIVISION TWO OR THREE OF THIS SECTION BASED ON
 SUCH A VIOLATION.
   5. IF A CHILD IS BORN ALIVE AND THERE IS A  VIOLATION  OF  SUBDIVISION
 ONE  OF  THIS  SECTION, THE MOTHER OF THE CHILD BORN ALIVE UPON WHOM THE
 ABORTION WAS PERFORMED OR ATTEMPTED MAY, IN A CIVIL ACTION  AGAINST  ANY
 PERSON  WHO  COMMITTED  THE  VIOLATION, OBTAIN APPROPRIATE RELIEF, WHICH
 SHALL INCLUDE:
   (A) ACTUAL MONEY DAMAGE FOR ALL INJURIES, PSYCHOLOGICAL AND  PHYSICAL,
 CAUSED BY THE VIOLATION OF SUBDIVISION ONE OF THIS SECTION:
   (B) STATUTORY DAMAGES EQUAL TO THREE TIMES THE COST OF THE ABORTION OR
 ATTEMPTED ABORTION; AND
   (C) PUNITIVE DAMAGES.
   6.  IF  JUDGMENT  IS  RENDERED IN FAVOR OF THE PLAINTIFF IN ANY ACTION
 AUTHORIZED UNDER THIS SECTION, THE COURT SHALL ALSO AWARD,  AS  PART  OF
 THE  COSTS, REASONABLE ATTORNEYS' FEES IN FAVOR OF THE PLAINTIFF AGAINST
 THE DEFENDANT. IF JUDGMENT IS RENDERED IN FAVOR OF THE DEFENDANT AND THE
 COURT FINDS THAT THE PLAINTIFF'S SUIT WAS FRIVOLOUS OR  BROUGHT  IN  BAD
 FAITH,  THEN  THE  COURT  SHALL  AWARD, AS PART OF THE COSTS, REASONABLE
 ATTORNEYS' FEES IN FAVOR OF THE DEFENDANT AGAINST THE PLAINTIFF.
   7. AS USED IN THIS SECTION:
   (A) "ATTEMPT" MEANS WITH RESPECT TO AN ABORTION, CONDUCT  THAT,  UNDER
 THE  CIRCUMSTANCES  AS  THE  ACTOR  BELIEVES  THEM  TO BE, CONSTITUTES A
 SUBSTANTIAL STEP IN A COURSE OF CONDUCT PLANNED TO CULMINATE IN PERFORM-
 ING AN ABORTION.
   (B) "BORN ALIVE" HAS THE SAME MEANING AS DEFINED IN SECTION  EIGHT  OF
 TITLE ONE OF THE UNITED STATES CODE.
   § 2. This act shall take effect immediately.