§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
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§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 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.
F. The provisions of R.S. 40:1061.1 shall apply to this Section.