SB 200-WRONGFUL DEATH OF AN UNBORN CHILD  1:36:38 PM CHAIR COGHILL announced the consideration of SB 200. "An Act establishing a right of action for the death of an unborn child in certain circumstances." This was the first hearing. 1:36:42 PM SENATOR MCGUIRE, speaking as sponsor of SB 200, explained that this rounds out legislation that Senator Dyson introduced several years ago that deemed an unborn child a victim the same as the pregnant mother who was the victim of any negligent or unlawful actions. What wasn't done at the time was to allow for civil law recovery. SB 200 does that. AS 09.15.018 is a new section that adds an action for the wrongful death of an unborn child. Nothing will bring the child back but this gives the parents a path to justice through both civil and criminal avenues and perhaps an opportunity towards healing, she said. CHAIR COGHILL asked what general level of proof this would require. SENATOR MCGUIRE replied the mental intent is intentional action and negligence in the area of wrongful death. 1:42:47 PM CARL E. BRENT, representing himself, Wasilla, Alaska, testified in support of SB 200. He said it wasn't until his family went through a terrible loss that he became aware that Alaska was one of just ten states that do not recognize deceased children in civil court. This should be fixed so that young couples in the future don't have to face this loss and have no civil recourse. 1:44:18 PM MARY HARNED, Staff Counsel, Americans United for Life, Washington, D.C. testified in support of SB 200. She testified as follows on behalf of Jackson's Law: Alaska currently bars a cause of action for deaths of an unborn child unless the child is born alive and dies thereafter. As Senator McGuire stated, this limitation starkly contrasts with Alaska's criminal law, which recognizes that an unborn child at any stage of development may be considered a victim of murder, manslaughter, and criminally negligent homicide. The wrongful death cause of action is intended to correct this law and the common law where no cause of action survives the victim's death. Thus, the wrong- doer could escape liability by inflicting injury so severe that they resulted in the death of his victims, which is a terrible irony that was in the law before wrongful death statutes started to be enacted in the states. Forty states recognize that a parent should be permitted to bring a wrongful death action when his or her unborn child dies in the womb as a result of a third party's criminal action, negligence, malpractice, or production or distribution of an unsafe product. Tragically, Alaska parents of unborn children who lose their lives because of the wrongful acts or omissions of others cannot receive this justice. These parents unquestionably have interest in the life, health, and wellbeing of their children. Wrongful behavior which results in the death of an unborn child carries the same social and emotional costs, including bereavement, a loss to society, and the lawlessness and disregard for life, which characterizes negligence, harmful and wrongful behavior. Jackson's Law will extend the protections provided by the state's wrongful death statute to all unborn children in Alaska. 1:46:53 PM JON GOODWIN, representing himself, Wasilla, Alaska, testified in support of SB 200. He advised that the bill is named after his son, Jackson. He started working on this legislation shortly after Jackson passed and he became aware that Alaska doesn't recognize unborn children in civil court. He described the pain of losing a child at 42 weeks gestation only to have people express condolences at his wife's miscarriage. Jackson was 9.5 pounds and fully developed and would be here today but for the healthcare that was provided that day, Mr. Goodwin said. MR. GOODWIN advised that he has been to Iraq and Afghanistan where he lost good friends and was shot down in 2005. He had to deal with Post-Traumatic Stress Disorder (PTSD), but the death of Jackson has been more traumatic than any pain he experienced overseas. Drawing from an ethics law course, he stated that the community that feels no moral indignation over a crime being committed against one of its members, and fails to stand up for that member, fails to show the respect that victims deserve. Mr. Goodwin stressed that it's the right thing for the community to recognize this shortcoming in the law. 1:49:18 PM SENATOR WIELECHOWSKI joined the committee. CHAIR COGHILL stated that this committee respects victims to the highest degree possible. 1:54:37 PM SUSANNE HANCOCK, representing herself, Anchorage, Alaska, testified in support of SB 200. She said she was testifying from a personal perspective as a good friend of the Wallace and Goodwin families. She is part of the ripple effect of the tragedy; she was looking forward to seeing their baby. 1:55:53 PM KIMBERLY WALLACE-GOODWIN, representing herself, Wasilla, Alaska, testified in support of SB 200. She related that she and her husband lost their son, Jackson Wallace-Goodwin on December 6, 2012. His passing has impacted the entire family, including the grandparents, aunts and uncles, friends and their families. She urged the committee support SB 200 and give a voice to those like Jackson who do not have a voice. 1:57:10 PM LELA RAYMOND, representing herself, Ketchikan, Alaska, testified in support of SB 200. She stated she was testifying on behalf on her nephew, Tanner Eugene Richards, who was lost about 16 months ago. Her niece went to the hospital at full term expressing that something was wrong. She spent about five hours with a nurse who never called the doctor despite repeated requests. The baby was alive and had a heartbeat when she went to the hospital, but he died in that five hours and her niece had to deliver a dead baby. Ms. Raymond said the nurse kept second-guessing herself and she believes that if that nurse knew she would get in trouble if something went wrong she might have called somebody. That may have saved Tanner's life. Passing SB 200 will help prevent things like this from happening in the future, she said. 2:00:50 PM APRIL DISHNEAU, representing herself, Palmer, Alaska, testified in support of SB 200. She described her experience as a high- risk pregnant mother who lost her baby three years ago. She was rushed to the hospital at 36 weeks with high blood pressure. When her blood pressure went down, she was told to go home and bed rest. Her placenta ruptured after just a day and her baby died. 2:02:40 PM SHIELA WALLACE, representing herself, Kodiak, Alaska, testified in support of SB 200. As Jackson's grandmother she advised that she is one of the people affected by this and would like the committee to pass the bill. CHAIR COGHILL asked the sponsor to discuss the required mental state. SENATOR MCGUIRE said the bill is meant to coincide with AS 11.41.150-170, which is murder of an unborn child, manslaughter of an unborn child, and criminally negligent homicide of an unborn child. The mental state for .150 is intent to kill an unborn child; the mental state for .160 is intentionally, knowingly, or recklessly causing the death of an unborn child; and the mental state for .170 is with criminal negligence the person causes the death of an unborn child. She noted that the drafter inserted this new section under civil damages in Title 9. The action for wrongful death of an unborn child is added to the two current sections that allow parents to sue for seduction of a child and for death or disability of a party. She read the description in subsection (a) and committed to bring a better definition of "wrongful act" and "omission" to the next hearing since the standards aren't specifically linked to those found in the criminal code. She thanked the families for testifying on such a difficult topic. 2:08:12 PM CHAIR COGHILL stated his intention to hold SB 200 for further discussion. SENATOR WIELECHOWSKI asked if the Department of Law was present. CHAIR COGHILL said a representative would be available on Wednesday. SENATOR WIELECHOWSKI expressed interest in hearing from DOL about the constitutionality of the bill given the definition of unborn child in AS 11.81.962, and about potential damages. He also questioned whether doctors and nurses or anyone from the medical community had weighed in on the bill. He assumed that the bill wouldn't apply to harm to the fetus through the morning after pill or mothers who drink during pregnancy, but he'd like that on the record. 2:10:39 PM SENATOR MCGUIRE responded to the questions. First, the bill specifically tracks the criminal bill that was passed in 2006; it has the definition of unborn child in AS 11.81.900 but it doesn't separate by trimesters. DOL might have an opinion about the constitutionality of the bill, but her opinion is that it would be constitutional. She suspected that damages would relate to the pain and suffering of the parents as opposed to the potential for a child's life at one week of development. She conceded that the argument about doctors and nurses was valid in the discussion of the bill. Finally, the bill specifically exempts the morning after pill or anything related to abortion and any act of a pregnant woman against herself. CHAIR COGHILL suggested the sponsor look at how the 40 other states with similar legislation had addressed those questions. 2:13:17 PM CHAIR COGHILL held SB 200 in committee for further consideration.