Chapter 253

253.107(3) (3) Protection of unborn child capable of feeling pain from abortions.

253.107(3)(a) (a) No person shall perform or induce or attempt to perform or induce an abortion upon a woman when the unborn child is considered capable of experiencing pain unless the woman is undergoing a medical emergency. For purposes of this subsection, an unborn child is considered to be capable of experiencing pain if the probable postfertilization age of the unborn child is 20 or more weeks.

253.107(3)(b) (b) When the unborn child is considered capable of experiencing pain and the pregnant woman is undergoing a medical emergency, the physician shall terminate the pregnancy in the manner that, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless the termination of the pregnancy in that manner poses a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than other available methods.

253.107(4) (4) Penalty. Any person who violates sub. (3) (a) is guilty of a Class I felony. No penalty may be assessed against a woman upon whom an abortion is performed or induced or attempted to be performed or induced.

253.107(5) (5) Civil remedies; injunctions.

253.107(5)(a) (a) Any of the following individuals may bring a claim for damages, including damages for personal injury and emotional and psychological distress, against a person who performs, or attempts to perform, an abortion in violation of this section:

253.107(5)(a)1. 1. A woman on whom an abortion is performed or induced or attempted to be performed or induced.

253.107(5)(a)2. 2. The father of the aborted unborn child or the unborn child that is attempted to be aborted, unless the pregnancy is the result of sexual assault under s. 940.225 (1), (2), or (3) or incest under s. 948.06 (1) or (1m).

253.107(5)(b) (b) A person who has been awarded damages under par. (a) shall, in addition to any damages awarded under par. (a), be entitled to punitive damages for a violation that satisfies a standard under s. 895.043 (3).

253.107(5)(c) (c)

253.107(5)(c)1. 1. Notwithstanding s. 814.04 (1), a person who recovers damages under par. (a) or (b) may also recover reasonable attorney fees incurred in connection with the action.

253.107(5)(c)2. 2. If a defendant prevails in an action under par. (a) and the court finds the action was frivolous or brought in bad faith, notwithstanding s. 814.04 (1), the defendant may recover reasonable attorney fees incurred in connection with defending the action.

253.107(5)(d) (d) A contract is not a defense to an action under this subsection.

253.107(5)(e) (e) Nothing in this subsection limits the common law rights of a person that are not in conflict with sub. (2) or (3).

253.107(5)(f) (f) A prosecuting attorney with appropriate jurisdiction may bring an action for injunctive relief against a person who has intentionally or recklessly violated this section.

253.107(6) (6) Confidentiality in court proceedings.

253.107(6)(a) (a) In every proceeding brought under this section, the court, upon motion or sua sponte, shall rule whether the identity of any woman upon whom an abortion was performed or induced or attempted to be performed or induced shall be kept confidential unless the woman waives confidentiality. If the court determines that a woman’s identity should be kept confidential, the court shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard the woman’s identity from public disclosure. If the court issues an order to keep a woman’s identity confidential, the court shall provide written findings explaining why the woman’s identity should be kept confidential, why the order is essential to that end, how the order is narrowly tailored to its purpose, and why no reasonable less restrictive alternative exists.

253.107(6)(b) (b) Any person, except for a public official, who brings an action under this section shall do so under a pseudonym unless the person obtains the written consent of the woman upon whom an abortion was performed or induced, or attempted to be performed or induced, in violation of this section.

253.107(6)(c) (c) This section may not be construed to allow the identity of a plaintiff or a witness to be concealed from the defendant.

253.107(7) (7) Construction. Nothing in this section may be construed as creating or recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful.

253.107 History History: 2015 a. 56.

253.11 253.11 Infant blindness.

253.11(1) (1) For the prevention of ophthalmia neonatorum or infant blindness the attending physician or midwife shall use a prophylactic agent approved by the department.

253.11(2) (2) In a confinement not attended by a physician or nurse-midwife, if one or both eyes of an infant become inflamed, swollen and red or show an unnatural discharge at any time within 2 weeks after birth, the nurse, parents, or other person in charge shall report the facts in writing within 6 hours to the local health officer who shall immediately warn the person of the danger. The local health officer shall employ at the expense of the local health department a competent physician to examine and treat the case.

253.11(3) (3) Any person who violates this section may be required to forfeit not more than $1,000.

253.11 History History: 1979 c. 221; 1987 a. 332; 1993 a. 27 s. 314; Stats. 1993 s. 253.11.

253.115 253.115 Newborn hearing screening.

253.115(1) (1) Definitions. In this section:

253.115(1)(a) (a) “Hearing loss” means an inability in one or both ears to detect sounds at 30 decibels hearing level or greater in the frequency region of 500 to 4,000 hertz that affects speech recognition and auditory comprehension.

253.115(1)(b) (b) “Hertz” means a unit of frequency equal to one cycle per second.

253.115(1)(c) (c) “Hospital” has the meaning given in s. 50.33 (2).

253.115(1)(d) (d) “Infant” means a child from birth to 3 months of age.

253.115(1)(e) (e) “Newborn hearing screening program” means a system of a hospital under which an infant may be tested, using currently available medical techniques, to determine if the infant has a hearing loss.

253.115(2) (2) Screening program report. Beginning July 1, 2002, the department shall annually collect information from hospitals for the previous calendar year concerning the numbers of deliveries in each hospital and the availability in each hospital of a newborn hearing screening program. From this information, by July 31, 2003, and annually thereafter, the department shall determine the percentage of deliveries in this state that are performed in hospitals that have newborn hearing screening programs and shall report this information to the appropriate standing committees of the legislature under s. 13.172 (3).

253.115(3) (3) Hospital screening program. If, by August 5, 2003, the department determines that fewer than 88 percent of all deliveries in this state are performed in hospitals that have a newborn hearing screening program and so notifies the hospitals, every hospital shall, by January 1, 2004, have a newborn hearing screening program that is available to all infants who are delivered in the hospital.

253.115(4) (4) Screening required. Except as provided in sub. (6), the physician, nurse-midwife licensed under s. 441.15, or certified professional midwife licensed under s. 440.982 who attended the birth shall ensure that the infant is screened for hearing loss before being discharged from a hospital, or within 30 days of birth if the infant was not born in a hospital.

253.115(5) (5) Referral to follow-up services. The department shall provide referrals to intervention programs for hearing loss.

253.115(6) (6) Exceptions.

253.115(6)(a) (a) Subsection (4) does not apply if the parents or legal guardian of the child object to a screen for hearing loss on the grounds that the test conflicts with their religious tenets and practices.

253.115(6)(b) (b) No screening may be performed under sub. (4) unless the parents or legal guardian are fully informed of the purposes of a screen for hearing loss and have been given reasonable opportunity to object under par. (a) to the screen.

253.115(7) (7) Screening results.

253.115(7)(a) (a) The physician, nurse-midwife licensed under s. 441.15, or certified professional midwife licensed under s. 440.982 who is required to ensure that the infant is screened for hearing loss under sub. (4) shall do all of the following:

253.115(7)(a)1. 1. Ensure the parents or legal guardian are advised of the screening results.

253.115(7)(a)2. 2. If the infant has an abnormal hearing screening result, ensure the parents or legal guardian are provided information on available resources for diagnosis and treatment of hearing loss.

253.115(7)(a)3. 3. Send to the state laboratory of hygiene board screening results and the infant’s risk factors to contract a hearing loss.

253.115(7)(b) (b) The state laboratory of hygiene board shall send the information provided under par. (a) 3. to the department.

253.115(8) (8) Confidentiality. Except as provided under sub. (7) (a) 3. and (b), no information obtained under this section from the parents or legal guardian may be disclosed except for use in statistical data compiled by the department without reference to the identity of any individual and except as provided in s. 146.82 (2).

253.115 History History: 1999 a. 9, 185; 2009 a. 279; 2011 a. 260.

253.12 253.12 Birth defect prevention and surveillance system.

253.12(1) (1) Definitions. In this section:

253.12(1)(a) (a) “Birth defect” means any of the following conditions affecting an infant or child that occurs prior to or at birth and that requires medical or surgical intervention or interferes with normal growth and development:

253.12(1)(a)1. 1. A structural deformation, disruption or dysplasia.

253.12(1)(a)2. 2. A genetic, inherited or biochemical disease.

253.12(1)(b) (b) “Pediatric specialty clinic” means a clinic the primary purpose of which is to provide pediatric specialty diagnostic, counseling and medical management services to persons with birth defects by a physician subspecialist.

253.12(1)(c) (c) “Infant or child” means a human being from birth to the age of 2 years.

253.12(1)(d) (d) “Physician” has the meaning given in s. 448.01 (5).

253.12(2) (2) Reporting.

253.12(2)(a) (a) Except as provided in par. (b), all of the following shall report in the manner prescribed by the department under sub. (3) (a) 3. a birth defect in an infant or child that is specified under sub. (3) (a) 2. or (d):

253.12(2)(a)1. 1. A pediatric specialty clinic in which the birth defect is diagnosed in an infant or child or treatment for the birth defect is provided to the infant or child.

253.12(2)(a)2. 2. A physician who diagnoses the birth defect or provides treatment to the infant or child for the birth defect.

253.12(2)(am) (am) Any hospital in which a birth defect is diagnosed in an infant or child or treatment is provided to the infant or child may report the birth defect in the manner prescribed by the department under sub. (3) (a) 3.

253.12(2)(b) (b) No person specified under par. (a) need report under par. (a) if that person knows that another person specified under par. (a) or (am) has already reported to the department the required information with respect to the same birth defect of the same infant or child.

253.12(2)(c) (c) If the department determines that there is a discrepancy in any data reported under this subsection, the department may request a physician, hospital or pediatric specialty clinic to provide to the department information contained in the medical records of patients who have a confirmed or suspected birth defect diagnosis. The physician, hospital or pediatric specialty clinic shall provide that information within 10 working days after the department requests it.

253.12(2)(d) (d) The department may not require a person specified under par. (a) 1. or 2. to report the name of an infant or child for whom a report is made under par. (a) if the parent or guardian of the infant or child states in writing that he or she refuses to release the name or address of the infant or child.

253.12(2)(e) (e) If the address of an infant or child for whom a report is made under par. (a) is included in the report, the department shall encode the address to refer to the same geographical location.

253.12(3) (3) Department duties and powers.

253.12(3)(a) (a) The department shall do all of the following:

253.12(3)(a)1. 1. Establish and maintain an up-to-date registry that documents the diagnosis in this state of any infant or child who has a birth defect, regardless of the residence of the infant or child. The department shall include in the registry information that will facilitate all of the following:

253.12(3)(a)1.a. a. Identification of risk factors for birth defects.

253.12(3)(a)1.b. b. Investigation of the incidence, prevalence and trends of birth defects using epidemiological surveys.

253.12(3)(a)1.c. c. Development of primary preventive strategies to decrease the occurrence of birth defects without increasing abortions.

253.12(3)(a)1.d. d. Referrals for early intervention or other appropriate services.

253.12(3)(a)2. 2. Specify by rule any birth defects the department determines the existence of which requires a report under sub. (2) to be submitted to the department and that the council under sub. (4) does not unanimously decide should be reported.

253.12(3)(a)3. 3. Specify by rule the content, format and procedures for submitting a report under sub. (2).

253.12(3)(a)3m. 3m. Require persons specified under sub. (2) (a) that are required to report to notify a parent or guardian of the infant or child who is diagnosed with a birth defect of the option to refuse to release the name and address of the infant or child to the registry.

253.12(3)(a)4. 4. Notify the persons specified under sub. (2) (a) of their obligation to report.

253.12(3)(b) (b) The department may monitor the data contained in the reports submitted under sub. (2) to ensure the quality of that data and to make improvements in reporting methods.

253.12(3)(d) (d) The secretary, after reviewing recommendations of the council under sub. (4), shall maintain a list of specific birth defects the existence of which requires a report under sub. (2) to be submitted to the department and that the council unanimously decides are required to be reported.

253.12(4) (4) Council on birth defect prevention and surveillance. The council on birth defect prevention and surveillance shall meet at least 4 times per year and shall do all of the following:

253.12(4)(a) (a) Make recommendations to the department regarding the establishment of a registry that documents the diagnosis in the state of an infant or child who has a birth defect, as required under sub. (3) (a) 1., the specific birth defects for which a report is required under sub. (2) on which the council unanimously decides, the rules that the department is required to promulgate under sub. (3) (a) 3., and on the general content and format of the report under sub. (2) and procedures for submitting the report. The council shall also make recommendations regarding the content of a report that, because of the application of sub. (2) (d), does not contain the name of the subject of the report.

253.12(4)(b) (b) Coordinate with the early intervention interagency coordinating council to facilitate the delivery of early intervention services to children from birth to 3 years with developmental needs.

253.12(4)(c) (c) Advise the secretary and make recommendations regarding the registry established under sub. (3) (a) 1.

253.12(4)(d) (d) Beginning April 1, 2002, and biennially thereafter, submit to the appropriate standing committees under s. 13.172 (3) a report that details the effectiveness, utilization and progress of the registry established under sub. (3) (a) 1.

253.12(5) (5) Confidentiality.

253.12(5)(a) (a) Any information contained in a report made to the department under sub. (2) that may specifically identify the subject of the report is confidential. The department may not release that confidential information except to the following, under the following conditions:

253.12(5)(a)1. 1. The parent or guardian of an infant or child for whom a report is made under sub. (2).

253.12(5)(a)2. 2. A local health officer, a local birth-to-3 coordinator or an agency under contract with the department to administer the children with special health care needs program, upon receipt of a written request and informed written consent from the parent or guardian of the infant or child. The local health officer may disclose information received under this subdivision only to the extent necessary to render and coordinate services and follow-up care for the infant or child or to conduct a health, demographic or epidemiological investigation. The local health officer shall destroy all information received under this subdivision within one year after receiving it.

253.12(5)(a)3. 3. A physician, hospital or pediatric specialty clinic reporting under sub. (2), for the purpose of verification of information reported by the physician, hospital or pediatric specialty clinic.

253.12(5)(a)4. 4. A representative of a federal or state agency upon written request and to the extent that the information is necessary to perform a legally authorized function of that agency, including investigation of causes, mortality, methods of prevention and early intervention, treatment or care of birth defects, associated diseases or disabilities. The information may not include the name or address of an infant or child with a condition reported under sub. (2). The department shall notify the parent or guardian of an infant or child about whom information is released under this subdivision, of the release. The representative of the federal or state agency may disclose information received under this paragraph only as necessary to perform the legally authorized function of that agency for which the information was requested.