The House Committee on Judiciary, Non-Civil offers the following substitute to HB 1398:
A BILL TO BE ENTITLED
AN ACT
To amend Article 2 of Chapter 4 of Title 17 of the Official Code of Georgia Annotated,
relating to arrest by law enforcement officers generally, so as to revise provisions relating
to the arrests of pregnant women; to provide that women who have been arrested are offered
pregnancy testing within a certain time of detention; to provide limitations on the use and
disclosure of such information; to provide for bond; to provide for bond limitations; to amend
Article 1 of Chapter 1 of Title 42 of the Official Code of Georgia Annotated, relating to
inmate policies, so as to revise provisions relating to the treatment during incarceration of
pregnant and postpartum women; to provide for definitions; to establish certain sentencing
requirements for pregnant and postpartum women; to provide for reporting; to provide for
limitations on the use and disclosure of certain medical information; to provide for related
matters; to provide for short titles; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
PART I
SECTION 1-1.
This Act shall be known and may be cited as the ''Georgia Child Care Alternatives,
Resources, and Education Act." This Act may also be known and may also be cited as
"Trixtian's Law.''
SECTION 1-2.
Article 2 of Chapter 4 of Title 17 of the Official Code of Georgia Annotated, relating to
arrest by law enforcement officers generally, is amended by revising Code Section 17-4-26,
relating to duty to bring persons arrested before judicial officer within 72 hours, notice to
accused of time and place of commitment hearing, and effect of failure to notify, as follows:
"17-4-26.
<ins>(a)</ins> Every law enforcement officer arresting under a warrant shall exercise reasonable
diligence in bringing the person arrested before the judicial officer authorized to examine,
commit, or receive bail and in any event to present the person arrested before a committing
judicial officer within 72 hours after arrest. The accused shall be notified as to when and
where the commitment hearing is to be held. An arrested person who is not notified before
the hearing of the time and place of the commitment hearing shall be released.
<ins>(b)(1) Every woman arrested who is not released on bond within 72 hours of arrest shall
be provided a urine pregnancy test, unless declined by the woman. The results of such
test shall be used exclusively for determining appropriate healthcare and for the purposes
set forth in paragraph (2) of this subsection; provided, however, that such results shall
only be disclosed for such purposes upon the woman's written consent and in compliance
with any applicable state and federal laws regarding privacy, including, but not limited
to, the provisions of the federal Health Insurance Portability and Accountability Act of
1996, P.L. 104-191.
</ins>
<ins>(2) If any urine pregnancy test yields a verified positive result, the judicial officer
authorized to examine, commit, or receive bail shall consider such result as a factor in
determining bail; provided, however, that bail shall not exceed the amount of $100.00,
unless the woman poses a significant threat or danger to any person or to the public
welfare."
</ins> PART II
SECTION 2-1.
Article 1 of Chapter 1 of Title 42 of the Official Code of Georgia Annotated, relating to
inmate policies, is amended by revising Code Section 42-1-11.3, relating to treatment of
pregnant and postpartum female inmates, as follows:
"42-1-11.3.
(a) As used in this Code section, the term:
(1) 'Custodian' means warden, sheriff, jailer, deputy sheriff, police officer, or any other
law enforcement officer.
(2) 'Immediate postpartum period' means the six-week period following childbirth unless
extended by a physician due to complications.
(3) 'Officer in charge' means the individual who is responsible for the supervision of a
penal institution.
(4) 'Penal institution' means any place of confinement for juvenile or adult individuals
accused of, convicted of, or adjudicated for violating a law of this state or an ordinance
of a political subdivision of this state.
(5) <ins>'Postpartum woman' means a woman who is within 12 months after giving birth to
a child, regardless of the outcome of such birth.
(6)</ins> 'Pregnant woman' means a woman whose pregnancy has been verified by a
pregnancy test or through a medical examination conducted by a physician.
<ins>(7) 'Supervision officer' shall have the same meaning as the term 'probation officer' as
set forth in Code Section 15-11-2, 'community supervision officer' as set forth in Code
Section 42-3-1, 'private probation officer' as set forth in Code Section 42-8-100, or
'probation officer' as set forth in Code Section 42-8-100.
</ins> <del>(6)(8)</del> 'Woman' means a juvenile or <ins>an</ins> adult <ins>human</ins> female who is confined in a penal
institution.
(b) A pregnant woman shall not be required to squat or cough during a strip search
conducted by a custodian during the second or third trimester of pregnancy.
(c) A pregnant woman shall not be required to undergo any vaginal examination unless
prescribed and performed by a licensed <del>health care</del> <ins>healthcare</ins> professional.
(d)(1) Except as otherwise provided in this subsection and notwithstanding Code
Section 42-5-58, a custodian shall not use handcuffs, waist shackles, leg irons, or
restraints of any kind on a pregnant woman who is in the second or third trimester of
pregnancy, in labor, or in delivery, or on a woman in the immediate postpartum period.
(2) A woman who is in the immediate postpartum period may only be restrained using
wrist handcuffs with her wrists held in front of her body and only if there are compelling
grounds to believe that such woman presents:
(A) An immediate and serious threat of harm to herself, staff, or others; or
(B) A substantial flight risk and cannot be reasonably contained by other means.
(3) If a custodian uses wrist handcuffs on a woman who is in the immediate postpartum
period under an exception provided in paragraph (2) of this subsection, the circumstances
for and details of such exception shall be documented within two days of the incident.
Such information shall include the nature of the circumstances and the length of time of
such use of restraints. The documentation shall be reviewed by the officer in charge and
retained by the penal institution for reporting purposes.
(4) Nothing in this subsection shall prohibit the use of medical restraints by a licensed
<del>health care</del> <ins>healthcare</ins> professional to ensure the medical safety of a pregnant woman.
(e) A pregnant woman or woman who is in the immediate postpartum period shall not be
placed in solitary confinement, in administrative segregation, or for medical observation
in a solitary confinement setting; provided, however, that this shall not prevent the
placement of such woman in a cell or hospital room by herself.
<ins>(f) At the time of sentencing a pregnant woman or postpartum woman, the court shall
consider such pregnant or postpartum status as a mitigating factor in determining such
sentence.
(g)(1) At the time of sentencing a pregnant woman, if the court's sentence includes a
term of imprisonment and the court has determined that such pregnant woman poses no
significant threat or danger to any person or to the public welfare, the court shall defer
such term of imprisonment until at least 12 weeks after the birth of the pregnant woman's
child. During such period of deferral, the court shall allow the pregnant woman to be
supervised on probation for the length of her pregnancy and for at least 12 weeks but up
to 12 months after the birth of her child, after which the woman shall surrender herself
to the Department of Corrections, as ordered by the court. In addition to any terms and
conditions of probation imposed by the court pursuant to Code Section 42-8-35, the court
shall impose as a condition of probation that the pregnant woman make good faith efforts
to maintain perinatal healthcare, treatment, and assessments and to participate in
education and resource programs to the extent such programs are available in her
community or through the Department of Human Services, and provide monthly
verification of such participation to her supervision officer. The court shall allow such
term of probation to be served without the payment of any fines, fees, and restitution and
shall allow supervision to be conducted by phone or other electronic communications.
The pregnant woman shall report the loss of her pregnancy for any reason to her
supervision officer within seven calendar days of such loss.
(2) If a pregnant woman serving a term of probation fails to surrender herself to the
Department of Corrections in accordance with paragraph (1) of this subsection, such
</ins>
<ins>pregnant woman may be prosecuted for a violation of Code Section 16-10-52 for willful
failure to surrender.
(3) The court's jurisdiction during any term of probation ordered pursuant to
paragraph (1) of subsection (b) of this Code section shall be the same as set forth in Code
Section 15-11-608 or 42-8-34, as applicable.
(4) Any time spent on probation by a pregnant woman shall be credited to the sentence
or disposition imposed.
(h) Commencing January 1, 2027, and annually thereafter, each penal institution shall
report to the Department of Public Health:
(1) The total number of women who were incarcerated;
(2) The total number of pregnant women who were incarcerated; and
(3) The total number of women who declined urine pregnancy testing under
paragraph (b)(2) of Code Section 17-4-26.
(i) The report provided pursuant to subsection (h) of this Code section shall exclude any
information that could reasonably lead to the identification of any individual woman and
shall comply with the provisions of the federal Health Insurance Portability and
Accountability Act of 1996, P.L. 104-191.
(j)(1) Any medical information, including, but not limited to, pregnancy testing and
prenatal or postpartum healthcare information, provided by, or with the consent of, a
pregnant woman or postpartum woman pursuant to this Code section or Code
Section 17-4-26 shall only be disclosed for the purposes of carrying out the provisions
of this Code section and in compliance with any applicable state and federal laws
regarding privacy, including, but not limited to, the provisions of the federal Health
Insurance Portability and Accountability Act of 1996, P.L. 104-191.
(2) On and after January 1, 2027, in no event shall any medical information, including,
but not limited to, pregnancy testing and prenatal or postpartum healthcare information,
provided by, or with the consent of, a pregnant woman or postpartum woman to a
</ins>
<ins>supervision officer or custodian pursuant to this Code section or Code Section 17-4-26
be admissible for the purpose of establishing criminal liability, except where such
information is obtained independently through other lawful means.
(f)(k)</ins> It is the intent of the General Assembly that a pregnant woman who is temporarily
held in a county jail pending transfer to a state penal institution be transferred as
expeditiously as possible. The Department of Corrections and a sheriff overseeing a
county jail in which a pregnant woman is incarcerated shall make all reasonable efforts to
facilitate such transfer. This subsection shall not apply to a pregnant woman who has been
sentenced to a county jail by a judge."
PART III
SECTION 3-1.
All laws and parts of laws in conflict with this Act are repealed.