February 24, 1976
Miss Judith K. Call, Secretary
Department of Health
Foss Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-26
Reporting requirements for abortions and fetal deaths
Dear Miss Call:
You have asked for an interpretation of several statutes relating to reporting of abortions and fetal births and deaths. Included therein is SDCL 34-23A-19 which provides:
34-23A-19. Any facility or physician performing abortions in this state shall report to the state department of health information as follows:
(1) Total number of abortions performed;
(2) Method of abortion used in each abortion performed;
(3) Complete pathology reports giving period of gestation of fetuses, presence of abonormality, and measurements of fetuses, if the facility where the abortion is performed is so equipped to complete such reports;
(4) Numbers of maternal deaths due directly or indirectly to abortions; and
(5) Reports of all follow-up, including short- and long-term complications in the woman due to abortion.
No report made under this section shall include the name of any woman receiving an abortion.
SDCL 34-25-32.2 provides, in part:
34-25-32.2. The funeral director, or person acting as such, who first assumes custody of a fetus shall file the fetal death certificate. In the absence of such a person, the physician or other person in attendance at or after the delivery shall file the certificate of fetal death. He shall obtain the personal data from the next of kin or the best qualified person or source available. He shall obtain the medical certification of cause of death from the person responsible therefor.
Further, SDCL 34-25-24 states:
34-25-24. The body of any person whose death occurs in this state, or which shall be found herein, or of a fetus of twenty weeks gestation or more, shall not be interred, deposited in a vault or tomb, cremated, or otherwise disposed of, or removed from the state, unless a permit for burial, removal, or other disposition shall have been properly issued by the registrar of the registration district in which the death, or fetal death occurred or the body was found.
The specific questions you raise are:
1. When an abortion occurs should it be reported as specified in chapter 34-25 or chapter 34-23A?
2. What is the responsibility of the Health Department to enforce the provisions of Chapter 34-23A arid more specifically what responsibility does the department have when a record indicates a violation of this chapter?
3. If a product of an abortion is turned over to a funeral director for cremation, what responsibility does he have for obtaining data and filing records required under SDCL 34-25-24, 34-25-32.1, 34-25-32.2?
4. If reports of abortion are received by the Department of Health under provision of SDCL 34-23A-19, should they be sent to the local registrar as provided in SDCL 34-25-32.1?
5. How does the definition of abortion in SDCL 34-23A-1 relate to the definition of live birth and fetal death in SDCL 34-25-1.1?
SDCL 34-25 provides the framework and guidelines for a system of vital registration and records in the state. Included therein is the requirement that a fetus of more than twenty weeks gestation shall not be buried or otherwise disposed of until a burial permit has been obtained. (SDCL 34-25-24.) Also, SDCL 34-25-32.1 and 34-25-32.2 require the filing of a fetal death certificate. "Fetal death" is defined as death prior to expulsion from its mother as evidenced by absence of heartbeat, pulsation or voluntary muscle movement. SDCL 34-25-1.1(3).
With regard to live births SDCL 34-25-8 states that a birth certificate shall be filed within seven days, and SDCL 34-23A-16 requires the same filing for live births resulting from abortions even though "said live person may thereafter die in a short time."
All of the filings referenced in the above cited statutes are to be made on forms prescribed by the State Department of Health. Therefore, in upholding the doctrine of "pari materia," it is my opinion that the Legislature has expressed the intention that uniform records of all fetal deaths and live births be kept. The uses for and purposes of said records "are several and need not be enumerated here. Of importance is the fact that birth and death records are required even in cases of abortions.
As you have pointed out in your request, SDCL 34-23A-19 requires any facility or physician performing abortions in the state to make a statistical report to the State Department of Health. I find no difficulty in distinguishing this provision from the vital record statutes earlier referred to. The report pursuant to SDCL 34-23A-19 is of an informational nature and presumably is used primarily for statistical purposes. Specific information, including the name of any woman receiving an abortion, is not part of the report. On the other hand, the vital statistics report forms adopted for use by the State Health Department obviously do include names, dates and other personal data. However, since SDCL 34-25-57.1 protects the confidentiality of the information contained in the vital records, there is no inherent conflict in the statutes and, at worst, filing of both reports will result in some duplicity. It is not for this office to question the need for or value of fetal birth and death records.
1) Therefore, in response to your Question No.1, it is my opinion that when an abortion occurs the appropriate reports must be filed both under SDCL 34-25 and 34-23A.
2) The responsibility of the State Department of Health pursuant to SDCL 34-23A is basically contained in SDCL 34-23A-16 which provides:
Whenever an abortion procedure results in a live birth, a birth certificate shall be issued certifying the birth of said live born person even though said live person may thereafter die in a short time. In the event death does ensue after a short time, a death certificate shall be issued; both the birth and death certificates shall be issued pursuant to law and rules and regulations of the state department of health.
As to criminal violations of the abortion statutes, the ultimate enforcement and prosecution is a matter for the appropriate state prosecutor.
Finally, enforcement of the reporting requirements of physicians and hospitals pursuant to SDCL 34-23A-19, although not specifically set forth therein, is by implication a proper function of the Health Department. It is my opinion that the department may adopt the necessary rules for implementing this procedure.
3) The language of the statutes cited in your Question No.3 is quite explicit. The person first assuming custody of the dead body is responsible for obtaining data and filing the relevant reports. It is my opinion that the term "dead fetus" as used in SDCL 34-23A-1 is to be interpreted as synonymous with the meaning of "fetal death" as that term is used in SDCL 34-25-1.1. Therefore, a funeral director in custody of the product of an abortion must comply with SDCL 34-25-24 to 34-25-32.2, inclusive, as well as other provisions of that chapter.
4) The answer to your Question No.4 is NO. I have previously discussed the distinctions between vital records and the informational report referred to in your question. There is no requirement in SDCL 34-23A for the State Health Department to transmit the information to any other office.
5) In regard to Question No.5, the definitions of "fetal death" and "live birth" as found in SDCL 34-25-1.1(3) and (6) respectively, are general in nature and do not exclude products of abortion. Further, "abortion" is defined in SDCL 34-23A-1(1) as "the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus." It is apparent that the Legislature recognized that an abortion produces a being, regardless of whether it be dead or alive at that time. The fact that the same terms were used, as well as the requirement of SDCL 34-23A-16, leads me to the conclusion that products of abortion fall within the appropriate definition of SDCL 34-25-1.1.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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