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A00718 Summary:

BILL NOA00718A
 
SAME ASNo Same As
 
SPONSORJacobson
 
COSPNSR
 
MLTSPNSR
 
Amd 130.65-a, Pen L; amd 30.10, CP L; add 2500-m, Pub Health L; amd 6530, Ed L
 
Creates a private right of action for fertility fraud; adds a health care practitioner using human reproductive material from the practitioner or from a donor knowing or who reasonably should have known that such patient had not expressly consented to such use, to the crime of aggravated sexual abuse in the fourth degree; relates to the time in which to commence actions relating to fertility fraud; includes fertility fraud in the definition of professional misconduct for physicians, physician's assistants and specialist assistants.
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A00718 Actions:

BILL NOA00718A
 
01/06/2021referred to codes
07/30/2021amend (t) and recommit to codes
07/30/2021print number 718a
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A00718 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         718--A
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced by M. of A. JACOBSON -- read once and referred to the Commit-
          tee  on Codes -- committee discharged, bill amended, ordered reprinted
          as amended and recommitted to said committee
 
        AN ACT to amend the penal law, in relation to aggravated sexual abuse in
          the fourth degree; to amend the criminal procedure law, in relation to
          the time in which to commence actions relating to fertility fraud;  to
          amend  the  public health law, in relation to creating a private right
          of action for fertility fraud; and to  amend  the  education  law,  in
          relation  to  including  fertility  fraud in the definition of profes-
          sional misconduct for physicians, physician's assistants and  special-
          ist assistants
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 130.65-a of the penal law, as added by chapter 1 of
     2  the laws of 2000, subdivision 1 as amended by chapter 485 of the laws of
     3  2009, is amended to read as follows:
     4  § 130.65-a Aggravated sexual abuse in the fourth degree.
     5    1. A person is guilty of aggravated sexual abuse in the fourth  degree
     6  when:
     7    (a)  He or she inserts a foreign object in the vagina, urethra, penis,
     8  rectum or anus of another person and the other person  is  incapable  of
     9  consent  by  reason  of some factor other than being less than seventeen
    10  years old; [or]
    11    (b) He or she inserts a finger in the vagina, urethra,  penis,  rectum
    12  or  anus  of  another  person causing physical injury to such person and
    13  such person is incapable of consent by reason of some factor other  than
    14  being less than seventeen years old; or
    15    (c)  (i) He or she is a health care practitioner who, in the course of
    16  performing an assisted reproduction procedure on a patient,  uses  human
    17  reproductive  material  from  the practitioner or from a donor where the

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05254-03-1

        A. 718--A                           2
 
     1  practitioner knows or reasonably should have known that such patient had
     2  not expressly consented to the use of human reproductive  material  from
     3  such practitioner or donor.
     4    (ii)  As  used  in  this paragraph, the following terms shall have the
     5  following meanings:
     6    (1) "Health care practitioner" means a physician,  nurse  practitioner
     7  or physician assistant.
     8    (2)  "Human reproductive material" means a human spermatozoon or ovum,
     9  or a human organism at any stage of development from fertilized ovum  to
    10  embryo.
    11    (3)  "Assisted reproduction" means a method of causing pregnancy other
    12  than sexual intercourse. The term  includes  intrauterine  insemination,
    13  donation of eggs, donation of embryos, in vitro fertilization and trans-
    14  fer of embryos and intracytoplasmic sperm injection.
    15    (4)  "Donor" means an individual who provides human reproductive mate-
    16  rial to be used for assisted reproduction,  regardless  of  whether  the
    17  eggs or sperm are provided for consideration.
    18    2.  Conduct performed for a valid medical purpose does not violate the
    19  provisions of paragraphs (a) and (b) of subdivision one of this section.
    20    Aggravated sexual abuse in the fourth degree is a class E felony.
    21    § 2. Subdivision 3 of section 30.10 of the criminal procedure  law  is
    22  amended by adding a new paragraph (h) to read as follows:
    23    (h)  A  prosecution  for  aggravated sexual abuse in the fourth degree
    24  involving fertility fraud as defined in paragraph (c) of subdivision one
    25  of section 130.65-a of the penal law may be commenced within three years
    26  after the facts constituting such offense are discovered by an aggrieved
    27  party through DNA (deoxyribonucleic acid) analysis, a  recording,  docu-
    28  ments  or  other  instrument  to  provide evidence sufficient to bring a
    29  prosecution, or the defendant confesses to the offense, whichever occurs
    30  later.
    31    § 3. The public health law is amended by adding a new  section  2500-m
    32  to read as follows:
    33    § 2500-m. Private right of action; fertility fraud. 1. As used in this
    34  section the following terms shall have the following meanings:
    35    (a)  "Assisted reproduction procedure" means a method of causing preg-
    36  nancy other than sexual intercourse. The term includes:
    37    (i) intrauterine insemination;
    38    (ii) donation of eggs;
    39    (iii) donation of embryos;
    40    (iv) in vitro fertilization and transfer of embryos; and
    41    (v) intracytoplasmic sperm injection.
    42    (b) "Human reproductive material" means:
    43    (i) a human spermatozoon or ovum; or
    44    (ii) a human organism at any stage of development from fertilized ovum
    45  to embryo.
    46    (c) "Health care practitioner" means a physician,  nurse  practitioner
    47  or physician assistant licensed under the education law.
    48    (d)  "Donor" means an individual who provides human reproductive mate-
    49  rial to be used for assisted reproduction,  regardless  of  whether  the
    50  eggs or sperm are provided for consideration.
    51    (e) "Assisted reproductive service provider" means a medical provider,
    52  fertility    clinic,  or reproductive tissue bank (which shall include a
    53  gamete bank), or any other entity which either provides assisted  repro-
    54  ductive  services  in  New  York state or for which any component of the
    55  assisted reproductive services arranged by the entity  is  performed  in
    56  New York state.

        A. 718--A                           3
 
     1    (f)  "Reproductive  tissue  bank" means a facility   which   acquires,
     2  processes, stores, distributes and/or releases reproductive tissue to an
     3  insemination/implantation site for use  in  artificial  insemination  or
     4  assisted reproductive procedures. Reproductive tissue banks include, but
     5  are  not  limited  to,  semen banks, oocyte donation programs and embryo
     6  banks.
     7    (g) "Insemination/implantation site" means a location at which artifi-
     8  cial insemination or assisted  reproductive  procedures  are  performed,
     9  using  reproductive tissue from anonymous donors, directed donors and/or
    10  client-depositors, including,  semen  processing,  limited  to  washing,
    11  concentrating  and  storing of semen from patients of physicians associ-
    12  ated with the licensed insemination/implantation sites or the  patients'
    13  regular  sexual  partners, as well as limited semen storage of less than
    14  six months' duration.
    15    (h) "Semen processing facility" means  a  tissue  processing  facility
    16  that processes semen for use by other licensed reproductive tissue banks
    17  and insemination/implantation sites.
    18    2. (a) The patient, after being treated for infertility by an assisted
    19  reproduction  procedure,  and in the event that such patient gives birth
    20  to a child, the spouse of such patient, the  surviving  spouse  of  such
    21  patient  or  a  child  born as a result of the actions described in this
    22  section shall have a cause of action against:
    23    (i) a health care practitioner who knowingly, intentionally or  negli-
    24  gently  performed  an  assisted  reproduction  procedure on such patient
    25  using:
    26    (1) such health care practitioner's own human  reproductive  material;
    27  or
    28    (2)  the human reproductive material of any donor without the informed
    29  written consent of such patient to  treatment  using  such  reproductive
    30  material.
    31    (ii)  a donor, health care practitioner, assisted reproductive service
    32  provider, reproductive tissue bank,  insemination/implantation  site  or
    33  semen processing facility who:
    34    (1) knowingly, intentionally or negligently provides false or mislead-
    35  ing information about the donor's identity including but not limited to:
    36  the donor's name, the donor's birthdate, the donor's address at the time
    37  of donation, the donor's medical history including but not limited to an
    38  illness  at  the  time of donation, any past illness of the donor or the
    39  social, genetic or family history of the donor;
    40    (2) knowingly, intentionally or negligently  uses  or  provides  human
    41  reproductive  material for an assisted reproduction procedure other than
    42  what was agreed to by the patient to be provided;
    43    (3) violates agreements between the donor and the  assisted  reproduc-
    44  tive      service      provider,      reproductive      tissue     bank,
    45  insemination/implantation site or semen processing facility; or
    46    (4) violates the regulations under section 52-8.1 of Title  X  of  the
    47  New York Codes, Rules and Regulations, as amended from time to time, for
    48  reproductive  tissue  banks,  insemination/implantation  sites  or semen
    49  processing facilities, including but not limited to those regulations on
    50  donor qualifications, required laboratory tests, collection, storage and
    51  disposition of reproductive tissue, informed consent,  required  records
    52  and quality assurance and safety.
    53    (b)  Each  child  born  pursuant  to paragraph (a) of this subdivision
    54  shall constitute a separate cause of action.
    55    3. (a) A donor of human reproductive material shall have  a  cause  of
    56  action  against  a  health  care  practitioner  who performs an assisted

        A. 718--A                           4
 
     1  reproduction procedure using such donor's  human  reproductive  material
     2  who  knew  or  reasonably should have known that such human reproductive
     3  material was used either:
     4    (i) without such donor's consent;
     5    (ii)  in  a  manner  or  to  an  extent other than to which such donor
     6  consented; or
     7    (iii) in a manner that violates the regulations under subpart 52-8  of
     8  part  52  of  Title  X  of the New York Codes, Rules and Regulations, as
     9  amended  from   time   to   time,   for   reproductive   tissue   banks,
    10  insemination/implantation  sites or semen processing facilities, includ-
    11  ing but not limited to those regulations on required  laboratory  tests,
    12  collection,  storage  and  disposition  of reproductive tissue, informed
    13  consent, required records and quality assurance and safety.
    14    (b) Each individual who receives an  assisted  reproduction  procedure
    15  pursuant  to  the  provisions of paragraph (a) of this subdivision shall
    16  constitute a separate cause of action.
    17    4. (a) Except as provided in paragraph (b)  of  this  subdivision,  an
    18  action pursuant to this section shall be commenced no later than:
    19    (i)  ten  years  after  the eighteenth birthday of the child conceived
    20  through the assisted reproduction procedure which is the subject of such
    21  action; or
    22    (ii) ten years after an assisted reproduction procedure was  performed
    23  if subparagraph (i) of this paragraph is not applicable.
    24    (b)  An action pursuant to this section that would otherwise be barred
    25  under this section may be commenced not later than three years after the
    26  earliest of the date on which:
    27    (i) the person first discovers evidence sufficient to bring an  action
    28  against  the  defendant  through DNA (deoxyribonucleic acid) analysis, a
    29  recording, documents or other instrument that provides  evidence  suffi-
    30  cient to bring an action against the defendant; or
    31    (ii) the defendant confesses to the offense.
    32    5.  A  plaintiff who prevails in an action under this section shall be
    33  entitled to:
    34    (a) reasonable attorneys' fees;
    35    (b) compensatory, punitive and economic damages; and
    36    (c) if such plaintiff commenced such action  pursuant  to  subdivision
    37  two of this section, the costs of the assisted reproduction procedure.
    38    6.  Nothing  in  this  section shall be construed to prohibit a person
    39  from pursuing any other remedy provided by law.
    40    § 4. Section 6530 of the education law is  amended  by  adding  a  new
    41  subdivision 51 to read as follows:
    42    51.  Convicted  of  a violation of paragraph (c) of subdivision one of
    43  section 130.65-a of the penal law or found liable  for  fertility  fraud
    44  under section twenty-five hundred-m of the public health law.
    45    § 5. This act shall take effect immediately.
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