2023 Tennessee Code › Title 39 - CRIMINAL OFFENSES (§§ 39-1-101 — 39-17-1812) › Chapter 15 - OFFENSES AGAINST THE FAMILY (§§ 39-15-101 — 39-15-514) › Part 2 - ABORTION (§§ 39-15-NEW — 39-15-219) › Section 39-15-219 - Final disposition of fetal remains from surgical abortion - Pregnant woman's right to determine

(a)
As used in this section:
(1)
"Abortion facility":
(A)
Means any of the following in which abortions are induced or performed:
(i)
An ambulatory surgical treatment center, as defined in §
68-11-201
;
(ii)
A private office; and
(iii)
Another facility, as defined in §
68-11-201
, in which abortion is legally provided; and
(B)
Does not include a hospital, as defined in §
68-11-201
, that is licensed pursuant to title 68, as long as the hospital acts pursuant to hospital policies or regulations concerning the disposal of fetal remains that substantially comply with the requirements of this section;
(2)
"Cremation" means the heating process by which a human body or body parts are reduced to bone fragments through combustion and evaporation;
(3)
"Crematory" has the same meaning as defined in §
62-5-101
;
(4)
"Fetal remains" means an aborted fetus or fetal tissue that results from an abortion of an unborn child;
(5)
"Interment" means the burial or entombment of fetal remains; and
(6)
[Deleted by 2023 amendment.]
(7)
"Unborn child" means an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.
(b)
(1)
A person shall not make a final disposition of fetal remains from a surgical abortion that occurs at an abortion facility except by cremation or interment.
(2)
The cremation of fetal remains under subdivision (b)(1) must be in a licensed crematory facility.
(c)
(1)
A pregnant woman who has a surgical abortion has the right to determine the following regarding the fetal remains:
(A)
Whether the final disposition is by cremation or interment; and
(B)
The location for the final disposition.
(2)
A pregnant woman who has a surgical abortion must be provided with a notification form described in subdivision (m)(1)(A).
(d)
(1)
If a pregnant woman desires to exercise the right described in subdivision (c)(1), then the woman must make the determination in writing using a form prescribed by the department of health under subdivision (m)(1)(C). The determination must clearly indicate the following:
(A)
Whether the final disposition will be by cremation or interment; and
(B)
Whether the final disposition will be at a location other than the location provided by the abortion facility.
(2)
If a pregnant woman does not desire to exercise the right described in subdivision (c)(1), then the abortion facility shall determine whether final disposition is by cremation or interment.
(3)
(A)
A pregnant woman who is under eighteen (18) years of age, unmarried, and unemancipated shall obtain parental consent from one (1) of the pregnant woman's parents, guardian, or custodian for the final disposition determination the woman makes under subdivision (d)(1). The consent must be made in writing using a form prescribed by the department of health under subdivision (m)(1)(B).
(B)
The consent under subdivision (d)(3)(A) is not required for a pregnant woman exercising her rights under subdivision (c)(1) if an order authorizing the minor to consent, or the court to consent on behalf of the minor, to the abortion is issued by a court of competent jurisdiction.
(e)
(1)
A pregnant woman who is carrying more than one (1) unborn child and who desires to exercise the right described in subdivision (c)(1), shall complete one (1) form under subdivision (d)(1) for each unborn child that will be aborted.
(2)
A pregnant woman who obtains parental consent under subdivision (d)(3)(A) shall use one (1) consent form for each unborn child that will be aborted.
(f)
A form used under subsection (d) that covers more than one (1) unborn child that will be aborted is invalid.
(g)
If a pregnant woman desires to exercise the right described in subdivision (c)(1), then an abortion facility shall not release fetal remains from a surgical abortion, or arrange for the cremation or interment of the fetal remains, until the facility obtains a final disposition determination made, and if applicable, the consent made, under subsection (d) or subdivision (e)(1).
(h)
(1)
Except as provided in subdivision (h)(2), an abortion facility shall pay for and provide for the cremation or interment of the fetal remains from a surgical abortion performed at that facility.
(2)
If the disposition determination made under subsection (d) or subdivision (e)(1) identifies a location for final disposition other than a location provided by the abortion facility, then the pregnant woman is responsible for the costs related to the final disposition of the fetal remains at the chosen location.
(i)
An abortion facility shall document in the pregnant woman's medical record the final disposition determination made, and if applicable, the consent made, under subsection (d) or subdivision (e)(1).
(j)
An abortion facility shall maintain evidentiary documentation demonstrating the date and method of the disposition of fetal remains from surgical abortions performed or induced in the facility.
(k)
An abortion facility shall have written policies and procedures regarding cremation or interment of fetal remains from surgical abortions performed or induced in the facility.
(l)
An abortion facility shall develop and maintain a written list of locations at which the facility provides or arranges for the final disposition of fetal remains from surgical abortions.
(m)
(1)
The commissioner of health shall develop the following forms or modify existing forms to provide the following:
(A)
The notification form informing pregnant women who seek surgical abortions of the following:
(i)
The right to determine final disposition of fetal remains under subdivision (c)(1); and
(ii)
The available options for locations and methods for the disposition of fetal remains;
(B)
The consent forms for purposes of subsection (d) and subdivision (e)(1);
(C)
A form that meets the following requirements:
(i)
Indicates whether the pregnant woman has indicated a preference as to the method of disposition of the fetal remains and the preferred method selected;
(ii)
Indicates whether the pregnant woman has indicated a preference as to the location of disposition of the fetal remains;
(iii)
Provides for the signature of the physician who is to perform or induce the abortion; and
(iv)
Provides for a medical identification number for the pregnant woman but does not provide for the pregnant woman's printed name or signature; and
(D)
Other forms that the commissioner determines to be necessary to ensure that the fetal remains of each unborn child are properly accounted for during transportation and delivery by and to persons and entities involved in the disposition of the fetal remains.
(2)
The commissioner of health shall promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as necessary to effectuate the purposes of this section.
(3)
The commissioner of health may consider the following when promulgating rules to effectuate the purposes of this section:
(A)
The need to clearly state in rules that the only legal methods of disposition of fetal remains are by burial or cremation, and that fetal remains cannot be disposed of as infectious waste;
(B)
Appropriate time limitations within which abortion providers and facilities must satisfy the requirements of this section; and
(C)
The need to establish procedures for the pregnant woman or the pregnant woman's authorized representative to complete the forms described in subdivision (m)(1), within a reasonable time following a medical emergency, in situations where a medical emergency prevents the pregnant woman from completing the forms.
(n)
A person who buries or cremates fetal remains from a surgical abortion is not liable for or subject to damages in a civil action, prosecution in a criminal proceeding, or professional disciplinary action related to the disposal of fetal remains, if that person does the following:
(1)
Complies in good faith with this section and, if applicable, §
62-5-502
;
(2)
Receives a copy of a properly executed form described in subdivision (m)(1)(C); and
(3)
Acts in furtherance of the final disposition of the fetal remains.
(o)
A conflicting law of this state or conflicting rule of an agency or board does not apply to a person who buries or cremates fetal remains in accordance with subsection (n).
(p)
A pregnant woman who has a surgical abortion, the fetal remains from which are not disposed of in compliance with this chapter, is not guilty of committing, attempting to commit, complicity in the commission of, or conspiracy in the commission of a violation of subsection (q).
(q)
A violation of subsection (b), (g), (i), or (j) is a Class A misdemeanor.
(r)
(1)
An abortion facility does not violate this section if, upon the request of a law enforcement officer made prior to final disposition of fetal remains, the abortion facility retains the fetal remains and permits the law enforcement officer to collect a portion or all of the fetal remains as evidence in a criminal investigation, as long as the abortion facility subsequently makes final disposition of any remaining fetal remains in accordance with this section.
(2)
An abortion facility that retains fetal remains pursuant to this subsection (r):
(A)
Shall retain all of the fetal remains of the unborn child that may remain following the collection of evidence by the law enforcement officer; and
(B)
Except for those portions of the fetal remains collected as evidence by the law enforcement officer, shall not dispose of any portion of the fetal remains of that unborn child independently of other fetal remains of the same unborn child.
(3)
A law enforcement officer that obtains fetal remains pursuant to this subsection (r), shall provide to the abortion facility documentation describing the fetal remains collected as evidence, and the abortion facility shall retain that documentation with the other documentation the abortion facility is required to retain under this section.
(s)
(1)
A completed form described in subdivision (m)(1) is confidential and is not a public record open for inspection.
(2)
The physician that performs the abortion shall retain completed forms described in subdivision (m)(1) in the pregnant woman's medical record as a record of the disposition of the fetal remains and shall report the disposition of the fetal remains to the commissioner of health, as required under §
39-15-203
.
Amended by 2023 Tenn. Acts, ch. 313, s 5, eff. 4/28/2023.
Added by 2021 Tenn. Acts, ch. 348, s 1, eff. 5/6/2021.