Florida Senate - 2021 SB 1984 By Senator Baxley 12-01302-21 20211984__ Page 1 of 16 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1

An act relating to the final disposition of fetal 2 remains; amending s. 390.011, F.S.; revising 3

definitions; amending s. 390.0111, F.S.; requiring a 4 physician who is to perform or induce a surgical 5 abortion to inform a pregnant woman of her right to 6 determine the final disposition of fetal remains; 7 requiring that the pregnant woman be provided with a 8 notification form; requiring that the form be 9 completed for each zygote, blastocyte, embryo, or 10 fetus to be aborted; conforming provisions to changes 11 made by the act; creating s. 390.01119, F.S.; defining 12 terms; requiring that fetal remains from a surgical 13 abortion at an abortion clinic be disposed of by 14 cremation or interment; requiring that the cremation 15 of fetal remains occurs in a crematory facility; 16 requiring that the pregnant woman be provided with a 17 notification form; providing requirements for such 18 form; requiring an abortion clinic to determine the 19 final disposition of fetal remains if the pregnant 20 woman decides not to make such determination; 21 requiring a pregnant woman who is a minor to obtain 22 consent from her parent or legal guardian to make such 23 determination; requiring a pregnant woman to complete 24 a form for each zygote, blastocyte, embryo, or fetus 25 that will be aborted; prohibiting an abortion clinic 26 from releasing fetal remains from a surgical abortion 27 or arrange for the cremation or interment of such 28 remains under certain conditions; requiring an 29

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 2 of 16 CODING: Words stricken are deletions; words underlined are additions. abortion clinic to pay and provide for cremation or 30 interment of fetal remains from a surgical abortion; 31 requiring that the pregnant woman pay for the costs 32 associated with final disposition of fetal remains 33 under a certain condition; requiring an abortion 34 clinic to document certain information in the pregnant 35 woman’s medical records; requiring an abortion clinic 36 to maintain certain documentation regarding final 37 disposition of fetal remains from surgical abortions 38 performed or induced at the clinic; requiring an 39 abortion clinic to develop and implement certain 40 written policies and procedures; requiring an abortion 41 clinic to develop and maintain a written list of 42 locations at which it provides or arranges for final 43 disposition of fetal remains; requiring the Department 44 of Health to adopt rules by a specified date; 45 requiring that such rules address certain forms; 46 providing immunity from civil or criminal liability 47 for certain persons under certain circumstances; 48 providing that a pregnant woman who has a surgical 49 abortion is not liable under certain circumstances; 50 providing penalties; providing certain prohibitions 51 and requirements for operators of crematory 52 facilities; providing for certain provisions of the 53 act to prevail over any conflicting provisions of ch. 54 390, F.S.; amending s. 390.0112, F.S.; revising 55 certain reporting requirements related to abortions; 56 amending ss. 390.012, 497.383, and 873.05, F.S.; 57 conforming provisions to changes made by the act; 58

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 3 of 16 CODING: Words stricken are deletions; words underlined are additions. providing an effective date. 59 60 Be It Enacted by the Legislature of the State of Florida: 61 62

Section 1. Subsections (1), (6), and (11) of

section 63 390.011, Florida Statutes, are amended to read: 64 390.011

Definitions.—As used in this chapter, the term: 65 (1) “Abortion” means the termination of human pregnancy 66 with an intention other than to produce a live birth or to 67 remove a dead zygote, blastocyte, embryo, or fetus. 68 (6) “Gestation” means the development of a human zygote, 69 blastocyte, embryo, or fetus between fertilization and birth. 70 (11) “Standard medical measure” means the medical care that 71 a physician would provide based on the particular facts of the 72 pregnancy, the information available to the physician, and the 73 technology reasonably available in a hospital, as defined in s. 74 395.002, with an obstetrical department, to preserve the life 75 and health of the zygote, blastocyte, embryo, or fetus, with or 76 without temporary artificial life-sustaining support, if the 77 zygote, blastocyte, embryo, or fetus were born at the same stage 78 of fetal development. 79

Section 2. Paragraph (

a) of subsection (3) and subsections 80 (6), (7), and (15) of

section 390.0111, Florida Statutes, are 81 amended to read: 82 390.0111 Termination of pregnancies.— 83

(3) CONSENTS REQUIRED.—A termination of pregnancy may not 84 be performed or induced except with the voluntary and informed 85 written consent of the pregnant woman or, in the case of a 86 mental incompetent, the voluntary and informed written consent 87

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 4 of 16 CODING: Words stricken are deletions; words underlined are additions. of her court-appointed guardian. 88 (

a) Except in the case of a medical emergency, consent to a 89 termination of pregnancy is voluntary and informed only if: 90 1. The physician who is to perform the procedure, or the 91 referring physician, has, at a minimum, orally, while physically 92 present in the same room, and at least 24 hours before the 93 procedure, informed the woman of: 94 a. The nature and risks of undergoing or not undergoing the 95 proposed procedure that a reasonable patient would consider 96 material to making a knowing and willful decision of whether to 97 terminate a pregnancy. 98 b.

The probable gestational age of the zygote, blastocyte, 99 embryo, or fetus, verified by an ultrasound, at the time the 100 termination of pregnancy is to be performed. 101 (

I) The ultrasound must be performed by the physician who 102 is to perform the abortion or by a person having documented 103 evidence that he or she has completed a course in the operation 104 of ultrasound equipment as prescribed by rule and who is working 105 in conjunction with the physician. 106 (II) The person performing the ultrasound must offer the 107 woman the opportunity to view the live ultrasound images and 108 hear an explanation of them.

If the woman accepts the 109 opportunity to view the images and hear the explanation, a 110 physician or a registered nurse, licensed practical nurse, 111 advanced practice registered nurse, or physician assistant 112 working in conjunction with the physician must contemporaneously 113 review and explain the images to the woman before the woman 114 gives informed consent to having an abortion procedure 115 performed. 116

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 5 of 16 CODING: Words stricken are deletions; words underlined are additions. (III) The woman has a right to decline to view and hear the 117 explanation of the live ultrasound images after she is informed 118 of her right and offered an opportunity to view the images and 119 hear the explanation. If the woman declines, the woman shall 120 complete a form acknowledging that she was offered an 121 opportunity to view and hear the explanation of the images but 122 that she declined that opportunity.

The form must also indicate 123 that the woman’s decision was not based on any undue influence 124 from any person to discourage her from viewing the images or 125 hearing the explanation and that she declined of her own free 126 will. 127 (IV) Unless requested by the woman, the person performing 128 the ultrasound may not offer the opportunity to view the images 129 and hear the explanation and the explanation may not be given 130 if, at the time the woman schedules or arrives for her 131 appointment to obtain an abortion, a copy of a restraining 132 order, police report, medical record, or other court order or 133 documentation is presented which provides evidence that the 134 woman is obtaining the abortion because the woman is a victim of 135 rape, incest, domestic violence, or human trafficking or that 136 the woman has been diagnosed as having a condition that, on the 137 basis of a physician’s good faith clinical judgment, would 138 create a serious risk of substantial and irreversible impairment 139 of a major bodily function if the woman delayed terminating her 140 pregnancy. 141 c.

The medical risks to the woman and the zygote, 142 blastocyte, embryo, or fetus of carrying the pregnancy to term. 143 d. If the abortion will be performed or induced surgically, 144 the pregnant woman’s right to determine the final disposition of 145

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 6 of 16 CODING: Words stricken are deletions; words underlined are additions. fetal remains in accordance with s. 390.01119. Notification 146 forms as described in s. 390.01119(6) must be provided to the 147 pregnant woman for her to indicate whether she chooses to 148 determine the final disposition of fetal remains in accordance 149 with s. 390.01119.

The notification forms must be completed for 150 each zygote, blastocyte, embryo, or fetus to be aborted. 151 152 The physician may provide the information required in this 153 subparagraph within 24 hours before the procedure if requested 154 by the woman at the time she schedules or arrives for her 155 appointment to obtain an abortion and if she presents to the 156 physician a copy of a restraining order, police report, medical 157 record, or other court order or documentation evidencing that 158 she is obtaining the abortion because she is a victim of rape, 159 incest, domestic violence, or human trafficking. 160 2.

Printed materials prepared and provided by the 161 department have been provided to the pregnant woman, if she 162 chooses to view these materials, including: 163 a. A description of the zygote, blastocyte, embryo, or 164 fetus, including a description of the various stages of 165 development. 166 b. A list of entities that offer alternatives to 167 terminating the pregnancy. 168 c. Detailed information on the availability of medical 169 assistance benefits for prenatal care, childbirth, and neonatal 170 care. 171 3.

The woman acknowledges in writing, before the 172 termination of pregnancy, that the information required to be 173 provided under this subsection has been provided. 174

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 7 of 16 CODING: Words stricken are deletions; words underlined are additions. 175 Nothing in this paragraph is intended to prohibit a physician 176 from providing any additional information which the physician 177 deems material to the woman’s informed decision to terminate her 178 pregnancy. 179

(6) EXPERIMENTATION ON ZYGOTE, BLASTOCYTE, EMBRYO, OR FETUS 180 PROHIBITED; EXCEPTION.—A No person may not shall use any live 181 zygote, blastocyte, embryo, or fetus or live, premature infant 182 for any type of scientific, research, laboratory, or other kind 183 of experimentation either before prior to or after subsequent to 184 any termination of pregnancy procedure except as necessary to 185 protect or preserve the life and health of such zygote, 186 blastocyte, embryo, or fetus or premature infant. 187

(7) FINAL DISPOSITION OF FETAL REMAINS.—Fetal remains shall 188 be humanely disposed of in accordance with s. 390.01119 a 189 sanitary manner pursuant to s. 381.0098 and rules adopted 190 thereunder. Failure to humanely dispose of fetal remains in 191 accordance with s. 390.01119 this subsection is a misdemeanor of 192 the first degree, punishable as provided in s. 775.082 or s. 193 775.083. 194

(15) USE OF PUBLIC FUNDS RESTRICTED.—A state agency, a 195 local governmental entity, or a managed care plan providing 196 services under

part IV of

chapter 409 may not expend funds for 197 the benefit of, pay funds to, or initiate or renew a contract 198 with an organization that owns, operates, or is affiliated with 199 one or more clinics that are licensed under this

chapter and 200 perform abortions unless one or more of the following applies: 201 (

a) All abortions performed by such clinics are: 202 1. On zygotes, blastocytes, embryos, or fetuses that are 203

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 8 of 16 CODING: Words stricken are deletions; words underlined are additions. conceived through rape or incest; or 204 2. Are medically necessary to preserve the life of the 205 pregnant woman or to avert a serious risk of substantial and 206 irreversible physical impairment of a major bodily function of 207 the pregnant woman, other than a psychological condition. 208

Section

Section 390.01119, Florida Statutes, is created 209 to read: 210 390.01119 Final disposition of fetal remains from surgical 211 abortions.— 212

(1) As used in this section, the term: 213 (a) “Cremation” has the same meaning as in s. 497.005. 214 (b) “Crematory facility” has the same meaning as the term 215 “cinerator” as defined in s. 497.005. 216 (c) “Fetal remains” means the product of human conception 217 which has been aborted.

If a woman is carrying more than one 218 zygote, blastocyte, embryo, or fetus, such as in the incidence 219 of twins or triplets, each zygote, blastocyte, embryo, or fetus 220 or any of its parts that is aborted is a separate product of 221 human conception which has been aborted. 222 (d) “Interment” means the burial or entombment of fetal 223 remains. 224 (e) “Surgical abortion” means a procedure that terminates a 225 pregnancy by removing the zygote, blastocyte, embryo, or fetus 226 and placenta from the pregnant woman’s uterus by surgical means. 227

(2) Fetal remains from a surgical abortion at an abortion 228 clinic shall be disposed of by cremation or interment. The 229 cremation of fetal remains must be in a crematory facility. 230

(3) A pregnant woman who has a surgical abortion has the 231 right to determine whether the final disposition of fetal 232

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 9 of 16 CODING: Words stricken are deletions; words underlined are additions. remains shall be by cremation or interment and the right to 233 choose the location for the final disposition. 234 (

a) A pregnant woman who has a surgical abortion must be 235 provided with a notification form as described in paragraph 236 (6)(a). If a pregnant woman chooses to exercise the right to 237 determine the final disposition of fetal remains under this 238 subsection, she must make such determination in writing using a 239 notification form prescribed by the department in accordance 240 with paragraph (6)(a). The written determination must clearly 241 indicate whether the final disposition will be by cremation or 242 interment and whether final disposition will be at a location 243 other than one provided by the abortion clinic. 244 (

b) If a pregnant woman does not choose to exercise the 245 right to determine the final disposition of fetal remains under 246 this subsection, the abortion clinic must determine whether 247 final disposition of fetal remains shall be by cremation or 248 interment. 249 (c)1. A pregnant woman who is 17 years of age or younger, 250 unmarried, and unemancipated shall obtain consent from her 251 parent or legal guardian regarding her determination of the 252 final disposition of fetal remains. Such consent must be made in 253 writing using a form prescribed by the department. 254 2.

Consent is not required for a pregnant woman who is 17 255 years of age or younger and exercising her right under this 256

section if a judicial waiver of the parental notice and consent 257 requirements is granted pursuant to s. 390.01114. 258 (

d) A pregnant woman who is carrying more than one zygote, 259 blastocyte, embryo, or fetus and who chooses to make a 260 determination of the final disposition of fetal remains must 261

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 10 of 16 CODING: Words stricken are deletions; words underlined are additions. complete one notification form for each zygote, blastocyte, 262 embryo, or fetus that will be aborted. A pregnant woman who 263 obtains consent from her parent or legal guardian must use one 264 consent form for each zygote, blastocyte, embryo, or fetus that 265 will be aborted. A form that covers more than one zygote, 266 blastocyte, embryo, or fetus that will be aborted is invalid. 267

(4) An abortion clinic may not release fetal remains from a 268 surgical abortion or arrange for the cremation or interment of 269 such fetal remains until it obtains a determination of the final 270 disposition of fetal remains and, if applicable, consent. 271 (5)(

a) Except as provided in paragraph (b), an abortion 272 clinic shall pay for and provide for the cremation or interment 273 of the fetal remains from a surgical abortion performed or 274 induced at that clinic. 275 (

b) If the determination of final disposition made by the 276 pregnant woman specifies a location for final disposition other 277 than one provided by the abortion clinic, the pregnant woman is 278 responsible for the costs associated with the final disposition 279 of the fetal remains at the chosen location. 280 (

c) An abortion clinic shall document in the pregnant 281 woman’s medical record the final disposition determination made 282 by the pregnant woman and, if applicable, whether consent was 283 obtained. 284 (

d) An abortion clinic shall maintain evidentiary 285 documentation demonstrating the date and method of the final 286 disposition of fetal remains from surgical abortions performed 287 or induced at the clinic. 288 (

e) An abortion clinic must develop and implement written 289 policies and procedures regarding cremation or interment of 290

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 11 of 16 CODING: Words stricken are deletions; words underlined are additions. fetal remains from surgical abortions performed or induced at 291 the clinic. An abortion clinic shall develop and maintain a 292 written list of locations at which it provides or arranges for 293 the final disposition of fetal remains from surgical abortions. 294

(6) By October 1, 2021, the department shall adopt rules 295 necessary to implement this

section which must address all of 296 the following: 297 (

a) The notification form informing pregnant women who seek 298 surgical abortions of the: 299 1. Right to determine the final disposition of fetal 300 remains. 301 2. Available options for locations and methods for the 302 disposition of fetal remains. 303 (b)1. A supplemental notification form which includes: 304 a. Whether the pregnant woman has indicated a preference as 305 to the: 306 (

I) Method of disposition of the fetal remains and the 307 preferred method selected. 308 (II) Location of the disposition of the fetal remains. 309 b. The signature of the physician who is to perform or 310 induce the surgical abortion. 311 c. A medical identification number for the pregnant woman. 312 The pregnant woman’s printed name or signature may not be 313 included. 314 2. If a medical emergency or medical necessity prevents the 315 pregnant woman from completing the supplemental notification 316 form, procedures to complete that form at a reasonable time 317 after the medical emergency or medical necessity has ended. 318

(7) A person who buries or cremates fetal remains from a 319

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 12 of 16 CODING: Words stricken are deletions; words underlined are additions. surgical abortion is not liable for or subject to damages in any 320 civil action, prosecution in any criminal proceeding, or 321 professional disciplinary action related to the disposal of 322 fetal remains if such person: 323 (

a) Acts in good faith compliance with this section; 324 (

b) Receives a copy of a properly executed supplemental 325 notification form described in paragraph (6)(b); and 326 (

c) Acts in furtherance of the final disposition of the 327 fetal remains. 328

(8) A pregnant woman who has a surgical abortion, the fetal 329 remains from which are not disposed of in compliance with this 330 section, is not guilty of committing, attempting to commit, 331 complicity in the commission of, or conspiracy in the commission 332 of a violation of this section. 333

(9) A person who knowingly violates this

section by failing 334 to humanely dispose of fetal remains commits a misdemeanor of 335 the first degree, punishable as provided in s. 775.082 or s. 336 775.083. 337 (10)(

a) An operator of a crematory facility that cremates 338 fetal remains for an abortion clinic may not: 339 1. Cremate fetal remains without receiving a copy of a 340 properly executed supplemental notification form as described 341 paragraph (6)(b); 342 2. Dispose of the cremated fetal remains by a means other 343 than one of the following: 344 a. Placing the remains in a grave, crypt, or niche; 345 b. Scattering them in any dignified manner, including in a 346 memorial garden, at sea, by air, or at a scattering garden; or 347 c. Any other manner in accordance with state law. 348

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 13 of 16 CODING: Words stricken are deletions; words underlined are additions. 3. Arrange for the disposal of the cremated fetal remains 349 by a means other than one described in subparagraph 2.; 350 4. Arrange for the transfer of the cremated fetal remains 351 for disposal by a means other than one described in subparagraph 352 2. 353 (

b) An operator of a crematory facility is not required to 354 secure a fetal death certificate, a burial-transit permit as 355 defined in s. 382.002, or a cremation authorization form to 356 cremate fetal remains. 357

(11) The provisions of this

section shall prevail over any 358 conflicting provisions of this chapter. 359

Section 4. Paragraph (

f) is added to subsection (1) of 360

section 390.0112, Florida Statutes, to read: 361 390.0112 Termination of pregnancies; reporting.— 362

(1) The director of any medical facility in which abortions 363 are performed, including a physician’s office, shall submit a 364 report each month to the agency. The report may be submitted 365 electronically, may not include personal identifying 366 information, and must include: 367 (

f) If a surgical abortion was performed or induced, the 368 method of final disposition of the fetal remains under s. 369 390.01119. 370

Section 5. Paragraph (

d) of subsection (3) and subsections 371 (6) and (7) of

section 390.012, Florida Statutes, are amended to 372 read: 373 390.012 Powers of agency; rules; disposal of fetal 374 remains.— 375

(3) For clinics that perform or claim to perform abortions 376 after the first trimester of pregnancy, the agency shall adopt 377

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 14 of 16 CODING: Words stricken are deletions; words underlined are additions. rules pursuant to ss. 120.536(1) and 120.54 to implement the 378 provisions of this chapter, including the following: 379 (

d) Rules relating to the medical screening and evaluation 380 of each abortion clinic patient. At a minimum, these rules shall 381 require: 382 1. A medical history including reported allergies to 383 medications, antiseptic solutions, or latex; past surgeries; and 384 an obstetric and gynecological history. 385 2. A physical examination, including a bimanual examination 386 estimating uterine size and palpation of the adnexa. 387 3. The appropriate laboratory tests, including: 388 a. Urine or blood tests for pregnancy performed before the 389 abortion procedure. 390 b. A test for anemia. 391 c.

Rh typing, unless reliable written documentation of 392 blood type is available. 393 d. Other tests as indicated from the physical examination. 394 4. An ultrasound evaluation for all patients. The rules 395 shall require that if a person who is not a physician performs 396 an ultrasound examination, that person shall have documented 397 evidence that he or she has completed a course in the operation 398 of ultrasound equipment as prescribed in rule. The rules shall 399 require clinics to be in compliance with s. 390.0111. 400 5.

That the physician is responsible for estimating the 401 gestational age of the zygote, blastocyte, embryo, or fetus 402 based on the ultrasound examination and obstetric standards in 403 keeping with established standards of care regarding the 404 estimation of fetal age as defined in rule and shall write the 405 estimate in the patient’s medical history. The physician shall 406

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 15 of 16 CODING: Words stricken are deletions; words underlined are additions. keep original prints of each ultrasound examination of a patient 407 in the patient’s medical history file. 408

(6) The agency may adopt and enforce rules, in the interest 409 of protecting the public health, to ensure the humane prompt and 410 proper disposal of fetal remains and tissue resulting from 411 pregnancy termination in accordance with s. 390.01119. 412

(7) If an owner, operator, or employee of an abortion 413 clinic fails to dispose of fetal remains and tissue in a humane 414 sanitary manner pursuant to s. 390.01119 s. 381.0098, rules 415 adopted thereunder, and rules adopted by the agency pursuant to 416 this section, the license of such clinic may be suspended or 417 revoked, and such owner, operator, or employee person commits a 418 misdemeanor of the first degree, punishable as provided in s. 419 775.082 or s. 775.083. 420

Section 6. Subsection (1) of

section 497.383, Florida 421 Statutes, is amended to read: 422 497.383 Additional rights of legally authorized persons.— 423

(1) In addition to any other common law or statutory rights 424 a legally authorized person may otherwise have, such that person 425 may authorize a funeral director or direct disposer licensed 426 under this

chapter to lawfully dispose of fetal remains in 427 circumstances when a fetal death certificate is not issued under 428

chapter 382, except as provided in s. 390.01119. A person 429 licensed under this

chapter or former

chapter 470 is not liable 430 for damages as a result of following the instructions of the 431 legally authorized person in connection with the final 432 disposition of fetal remains in circumstances in which a fetal 433 death certificate is not issued under

chapter 382 or in 434 connection with the final disposition of a dead human body. 435

Florida Senate - 2021 SB 1984 12-01302-21 20211984__ Page 16 of 16 CODING: Words stricken are deletions; words underlined are additions.

Section 7. Subsection (2) of

section 873.05, Florida 436 Statutes, is amended to read: 437 873.05 Advertising, purchase, sale, or transfer of human 438 embryos or fetal remains prohibited.— 439

(2) A person may not advertise or offer to purchase, sell, 440 donate, or transfer, or purchase, sell, donate, or transfer, 441 fetal remains obtained from an abortion, as defined in s. 442 390.011. This subsection does not prohibit the transportation or 443 transfer of fetal remains for disposal pursuant to s. 390.01119 444 s. 381.0098 or rules adopted thereunder. 445

Section 8. This act shall take effect July 1, 2021. 446