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COMMITTEE REPORT
May 2, 2001
S. 312
Introduced by Senators Verdin, Grooms, Fair, Thomas, Hawkins and Ryberg
S. Printed 5/2/01--S.
Read the first time February 13, 2001.
To whom was referred a Bill (S. 312) to amend Chapter 5, Title 15, Code of Laws of South Carolina, 1976, relating to civil remedies and procedures, by adding Section 15-5-5 so as to provide that for purposes of a civil cause of action, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:
/ SECTION 1. This act may be cited and referred to as the "Unborn Victims Act of 2001".
SECTION 2. Section 15-3-40 of the 1976 Code is amended to read:
"Section 15-3-40. If a person entitled to bring an action mentioned in pursuant to Article 5 of this chapter or an action under Chapter 78 of this title, except for a penalty or forfeiture or against a sheriff or other officer for an escape, is at the time the cause of action accrued either:
(1) within the age of eighteen years; or
(2) insane an unborn child at every stage of gestation in utero from conception until live birth; or
(3) insane;
the time of the disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended:
(a) more than five years by any such disability, except infancy; nor
(b) in any case longer than one year after the disability ceases."
SECTION 3. Section 15-3-545(D) of the 1976 Code is amended to read:
"(D) Notwithstanding the provisions of Section 15-3-40, if a person entitled to bring an action against a licensed health care provider acting within the scope of his profession is under the age of majority or an unborn child at every stage of gestation in utero from conception until live birth at the date of the treatment, omission, or operation giving rise to the cause of action, the time period or periods limiting filing of the action are not tolled for a period of more than seven years on account of minority, or fetal status, and nor in any case for more than one year after the disability ceases. Such time limitation is tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor."
SECTION 4. Article 1, Chapter 5, Title 15 of the 1976 Code is amended by adding:
"Section 15-5-5. For purposes of a civil cause of action, 'person' includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 5. Section 15-78-30 of the 1976 Code is further amended by adding an appropriately numbered subitem to read:
"( ) 'Person' includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 6. Section 16-3-85(B) of the 1976 Code is amended to read:
"(B) For purposes of this section, the following definitions apply:
(1) 'child abuse or neglect' means an act or omission by any person which causes harm to the child's physical health or welfare;
(2) 'harm' to a child's health or welfare occurs when a person:
(a) inflicts or allows to be inflicted upon the child physical injury, including injuries sustained as a result of excessive corporal punishment;
(b) fails to supply the child with adequate food, clothing, shelter, or health care, and the failure to do so causes a physical injury or condition resulting in death; or
(c) abandons the child resulting in the child's death.:
(3) 'child' includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 7. Section 16-3-95 of the 1976 Code is amended to read:
"Section 16-3-95. (A) It is unlawful to inflict great bodily injury upon a child. A person who violates this subsection is guilty of a felony and, upon conviction, must be imprisoned not more than twenty years.
(B) It is unlawful for a child's parent or guardian, person with whom the child's parent or guardian is cohabitating, or any other person responsible for a child's welfare as defined in Section 20-7-490(5) knowingly to allow another person to inflict great bodily injury upon a child. A person who violates this subsection is guilty of a felony and, upon conviction, must be imprisoned not more than five years.
(C) For purposes of this section, 'great bodily injury' means bodily injury which creates a substantial risk of death or which causes serious or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
(D) For purposes of this section, 'child' includes an unborn child at every stage of gestation in utero from conception until live birth.
(E) This section may must not be construed to prohibit corporal punishment or physical discipline which that is administered by a parent or person in loco parentis in a manner which does not cause great bodily injury upon a child.
(F) This section does not apply to traffic accidents unless the accident was caused by the driver's reckless disregard for the safety of others."
SECTION 8. Article 1, Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-100. (A) For purposes of all offenses arising out of the unlawful killing or battery of any 'person' or of 'another' in this chapter, the terms 'person' and 'another' include an unborn child at every stage of gestation in utero from conception until live birth.
(B) Nothing in this section applies to a female's right to:
(1) privacy;
(2) a lawful abortion;
(3) a medical procedure performed by a licensed health care provider at the request of the pregnant female or her legal guardian;
(4) any medical procedure for which consent is implied by law or is not required by law;
(5) the lawful dispensing of a prescription; or
(6) the administration or delivery of lawfully prescribed medications, injections, or devices.
(C) This section must not be construed to provide for the prosecution of a person or licensed health care provider engaged in conduct related to or arising out of the performance of a lawful abortion.
(D) This section must not be construed to provide for the prosecution of a person or licensed health care provider for providing medical treatment to a pregnant female or her unborn child.
(E) This section must not be construed to prohibit any licensed health care provider from the lawful prescription, dispensation, or administration of medications, injections, or devices; or delivery of lawfully prescribed medications, injections, or devices.
(F) For purposes of this section:
(1) 'licensed health care provider' means physicians and surgeons; directors, officers, and trustees of hospitals; nurses; oral surgeons; dentists; pharmacists; chiropractors; optometrists; podiatrists; emergency medical technicians, hospitals; nursing homes; persons employed by licensed health care providers who are performing their duties in the normal course of business, or any similar category of licensed health care providers.
(2) 'person' means an individual acting as a 'good Samaritan' who in good faith gratuitously renders emergency medical treatment as provided for in Section 15-1-310."
SECTION 9. Article 1, Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-110. A pregnant female must not be prosecuted under this chapter for acts which affect her unborn child, unless those acts are the direct result of the unlawful use of a controlled substance."
SECTION 10. Section 16-3-1040(E) of the 1976 Code is amended by to read:
"(E) For purposes of this section:
(1) 'Public official' means an elected or appointed official of the United States or of this State or of a county, municipality, or other political subdivision of this State.
(2) 'Public employee' means a person employed by the State, a county, a municipality, a school district, or a political subdivision of this State, except that for purposes of this section, a 'public employee' does not include a teacher or principal of an elementary or secondary school.
(3) 'Immediate family' means the spouse, child, grandchild, mother, father, sister, or brother of the public official, teacher, principal, or public employee.
(a) 'Child' includes an unborn child at every stage of gestation in utero from conception until live birth.
(b) 'Grandchild' includes an unborn grandchild at every stage of gestation in utero from conception until live birth."
SECTION 11. Section 16-3-1110(8) of the 1976 Code is amended by to read:
"(8) 'Victim' means a person who suffers direct or threatened physical, emotional, or financial harm as the result of an act by someone else, which is a crime. The term includes:
(a) immediate family members:
(i) of a homicide victim; or
(ii) of any other victim who is either incompetent or a minor; and includes
(b) an intervenor; and
(c) an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 12. Section 16-3-1510(1) of the 1976 Code is amended to read:
"(1) 'Victim' means any individual who suffers direct or threatened physical, psychological, or financial harm as the result of the commission or attempted commission of a criminal offense, as defined in this section. 'Victim' includes an unborn child at every stage of gestation in utero from conception until live birth. 'Victim' also includes any individual's spouse, parent, child, or the lawful representative of a victim who is:
(a) deceased;
(b) a minor;
(c) incompetent; or
(d) physically or psychologically incapacitated.
'Victim' does not include any individual who is the subject of an investigation for, who is charged with, or who has been convicted of or pled guilty or nolo contendere to the offense in question. 'Victim' also does not include any individual, including a spouse, parent, child, or lawful representative, who is acting on behalf of the suspect, juvenile offender, or defendant unless his actions are
required by law. 'Victim' also does not include any individual who was imprisoned or engaged in an illegal unlawful act at the time of the offense."
SECTION 13. Section 16-25-10 of the 1976 Code is amended to read:
"Section 16-25-10. As used in this article, 'household member' means spouses, former spouses, parents and children, children including unborn children at every stage of gestation in utero from conception until live birth, persons related by consanguinity or affinity within the second degree, persons who have a child in common, and a male and female who are cohabiting or formerly have cohabited."
SECTION 14. Section 38-77-30 of the 1976 Code is amended read:
"(7) 'Insured' means the named insured and, while resident of the same household, the spouse of any named insured and relatives of either, including an unborn child at every stage of gestation in utero from conception until live birth, while in a motor vehicle or otherwise, and any person who uses with the consent, expressed or implied, of the named insured the motor vehicle to which the policy applies and a guest in the motor vehicle to which the policy applies or the personal representative of any of the above."
SECTION 15. Section 50-21-10(20) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(20) 'Person' means an individual, a partnership, a firm, a corporation, an association, or other legal entity. For the purpose of a violation of a provision in this article which results in death or injury, 'person' also includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 16. Article 1, Chapter 21, Title 50 of the 1976 Code is amended by adding:
"Section 50-21-118. A pregnant female must not be prosecuted under this article for acts which affect her unborn child, unless those acts are the direct result of the unlawful use of a controlled substance."
SECTION 17. Article 1, Chapter 21, Title 50 of the 1976 Code is amended by adding:
"Section 50-21-119. A law enforcement officer investigating a violation of a provision of this article must, where a female of child bearing age is injured or dies as a result of a violation of this article, inquire as to whether the female is pregnant. The officer must indicate on his report that the inquiry was made, who responded to the inquiry, and the response that was provided to the officer."
SECTION 18. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-116. A pregnant female must not be prosecuted under this article for acts which affect her unborn child, unless those acts are the direct result of the unlawful use of a controlled substance."
SECTION 19. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2916. A law enforcement officer investigating a violation of a provision of this article must, where a female of child bearing age is injured or dies as a result of a violation of this article, inquire as to whether the female is pregnant. The officer must indicate on his report that the inquiry was made, who responded to the inquiry, and the response that was provided."
SECTION 20. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2917. For the purpose of a violation of a provision in this article which results in death or injury, the term 'person' includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 21. If any section, or provision of this act is held by a court of competent jurisdiction to be unconstitutional or invalid, it does not affect the remaining provisions of this act and all provisions of this act are hereby declared to be severable from other provisions.
SECTION 22. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 23. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
Majority favorable. Minority unfavorable.
ADDISON G. WILSON MAGGIE W. GLOVER
For Majority. For Minority.
EXPLANATION OF IMPACT:
Judicial Department
The department has indicated that there would be a minimal impact to the General Fund of the State, which can be absorbed by the agency with its current level of funding.
Department of Corrections
The department forecasts a minimal fiscal impact to the General Fund of the State with the passage of the proposed legislation. While the department notes that data is not available to predict the number of convictions and the resultant admissions that would result from the proposed legislation, it projects that a significant population increase is not expected.
Department of Probation, Parole & Pardon
The department forecasts no fiscal impact to the General Fund of the State nor on federal and/or other funds with the passage of the proposed legislation.
Approved By:
Don Addy
Office of State Budget
TO AMEND CHAPTER 5, TITLE 15, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CIVIL REMEDIES AND PROCEDURES, BY ADDING SECTION 15-5-5 SO AS TO PROVIDE THAT FOR PURPOSES OF A CIVIL CAUSE OF ACTION "PERSON" INCLUDES AN UNBORN CHILD AT EVERY STAGE OF GESTATION IN UTERO FROM CONCEPTION UNTIL LIVE BIRTH; TO AMEND CHAPTER 3, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OFFENSES AGAINST A PERSON, BY ADDING SECTION 16-3-90 SO AS TO PROVIDE THAT FOR PURPOSES OF ALL OFFENSES ARISING OUT OF THE UNLAWFUL KILLING OR BATTERY OF ANY PERSON, THE TERM "PERSON" INCLUDES AN UNBORN CHILD AT EVERY STAGE OF GESTATION IN UTERO FROM CONCEPTION UNTIL LIVE BIRTH, AND TO PROVIDE FOR EXCLUSIONS; TO AMEND SECTION 50-21-10, RELATING TO EQUIPMENT AND OPERATION OF WATERCRAFT, SO AS TO PROVIDE THAT FOR PURPOSES OF ALL OFFENSES ARISING OUT OF THE DEATH OR INJURY OF ANY PERSON IN ARTICLE 1, CHAPTER 21, TITLE 50, "PERSON" INCLUDES AN UNBORN CHILD AT EVERY STAGE OF GESTATION IN UTERO FROM CONCEPTION UNTIL LIVE BIRTH; TO AMEND CHAPTER 5, TITLE 56, RELATING TO MOTOR VEHICLES AND REGULATING TRAFFIC ON THE HIGHWAYS, BY ADDING SECTION 56-5-2915 SO AS TO PROVIDE THAT FOR PURPOSES OF ALL OFFENSES ARISING OUT OF THE DEATH OR INJURY OF ANY "PERSON" IN ARTICLE 23, CHAPTER 5, TITLE 56, THE TERM "PERSON" INCLUDES AN UNBORN CHILD AT EVERY STAGE OF GESTATION IN UTERO FROM CONCEPTION UNTIL LIVE BIRTH.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited and referred to as the "Unborn Victims Act of 2001".
SECTION 2. Article 1, Chapter 5, Title 15 of the 1976 Code is amended by adding:
"Section 15-5-5. For purposes of a civil cause of action, 'person' includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 3. Article 1, Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-90. (A) For purposes of all offenses arising out of the unlawful killing or battery of any 'person' or of 'another' in this chapter, the terms 'person' and 'another' include an unborn child at every stage of gestation in utero from conception until live birth.
(B) Nothing in this section applies to a mother's right to privacy, to a lawful medical procedure performed by a physician or other licensed medical professional at the request of the mother of an unborn child or the mother's legal guardian, or to the lawful dispensation or administration of lawfully prescribed medication."
SECTION 4. Section 50-21-10(20) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(20) 'Person' means an individual, a partnership, a firm, a corporation, an association, or other legal entity. For purposes of all offenses arising out of the death or injury of any 'person' in this article, 'person' also includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 5. Article 1, Chapter 21, Title 50 of the 1976 Code is amended by adding:
"Section 50-21-180. For purposes of all offenses arising out of the death or injury of any 'person' in this article, the term 'person' includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 6. Article 23, Chapter 5, Title 56 of the 1976 Code is amended by adding:
"Section 56-5-2915. For purposes of all offenses arising out of the death or injury of any 'person' in this article, the term 'person' includes an unborn child at every stage of gestation in utero from conception until live birth."
SECTION 7. If any section, or provision of this act is held by a court of competent jurisdiction to be unconstitutional or invalid, it does not affect the remaining provisions of this act and all provisions of this act are hereby declared to be severable from other provisions.
SECTION 8. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 9. This act takes effect upon approval by the Governor.
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