Establishes a cause of action for fertility fraud; allows patients who have undergone assisted reproduction procedures to bring a cause of action if human reproductive material other than that which was consented to by the patient is used in such procedure; allows for compensatory and punitive damages.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2845A
SPONSOR: Paulin TITLE OF BILL:
An act to amend the civil rights law and the education law, in relation
to establishing a cause of action for fertility fraud
PURPOSE:
To provide civil recourse to patients, spouses, and children when a.
physician service provider, or donor commits fertility fraud.
SUMMARY OF PROVISIONS:
Section one adds a new section 52-d to the civil rights law, creating a
private right of action for fertility fraud. Subdivision one provides
that any patient who has undergone an assisted reproduction procedure
with a health care provider, any intended parent, their spouse, and a
child or person born as a result of such assisted reproductive procedure
shall have a private right of action for damages against such health
care provider when: (a) such health care provider knowingly or inten-
tionally performs an assisted reproduction procedure using the human
reproductive material of the health care provider or any other donor
without the patient's informed written consent, or from any donor other
than a donor from whom the patient consented in writing; or (b) such
health care provider intentionally performs an assisted reproduction
procedure and such health care provider knows or reasonably should have
known that the human reproductive material was used: (i) without the
donor's consent; or (ii) in a manner or to an extent other than that to
which the donor consented.
Subdivision two provides that any patient who has undergone an assisted
reproduction procedure, any intended parent, their spouse, or a child or
person born as a result of such assisted reproduction procedure shall
have a private right of action for damages against a donor or assisted
reproductive service provider where (a) such donor or assisted reproduc-
tive service provider knowingly provides false or misleading information
about the donor's medical history including but not limited to an
illness at the time of donation, any past illness, of the donor, or
genetic or family history of the donor for the past two generations
which is known to the donor at the time of donation; or such assisted
reproductive service provider knowingly uses or provides human reproduc-
tive material for an assisted reproduction procedure in a manner or to
an extent other than that to which the patient consented.
Subdivision three provides that a donor of human reproductive material
shall have a cause of action against a health care provider or assisted
reproductive service provider, if the donor's human reproductive materi-
al was used: (i) without the donor's consent; or (ii) in a manner or to
an extent other than that to which the donor consented.
Subdivision four provides that damages recovered by a plaintiff pursuant
to this section shall include compensatory damages. In addition, the
trier of fact may award punitive damages and such other non-monetary
relief as may be appropriate.
Subdivision five provides that nothing in this section shall be deemed
to abrogate or otherwise limit any right or remedy otherwise conferred
'by federal or state law including but not limited to, any right or
remedy related to child support, nor shall any award under this section
be used to offset child support obligations that may arise in connection
with this section.
Subdivision six provides that a cause of action under this section shall
be commenced no later than six years from the date a person discovers,
or reasonably should have discovered, the fertility fraud. Subdivision
seven defines terms used in this section.
Section two amend section 6530 of the education law to provide that a
physician is guilty of profession misconduct if they commit fertility
fraud.
Section three provides the effective date.
JUSTIFICATION:
Several recent high-profile cases of doctors using their own sperm to
inseminate patients have brought attention to the issue of fertility
fraud. One Indiana doctor used his sperm instead of the intended donor
sperm and has been found to have fathered at least sixty children, born
in the 1970s and 1980s. Vocal patients who were victims of a doctor's
fraud in Texas exposed his actions and were successful in advocating for
the passage of fertility fraud legislation in their state. Currently,
Indiana, California, and Texas have enacted laws creating a civil right
of action for fertility fraud. Civil bills have also been introduced and
are pending in Colorado, -Nebraska, Ohio, and Florida.
New York law must protect the dignity of women undergoing assisted
reproduction procedures. If a doctor violates their professional oath
and takes advantage of a patient's confidence by using reproductive
material without prior consent, there must be judicial recourse avail-
able to victims. Learning that one has received unintended reproductive
material without consent is the ultimate betrayal of trust and would
leave a patient feeling nothing less than deceit and violation. This
legislation creates a civil right of action against a health care
provider when such provider knowingly or intentionally performs an
assisted reproductive procedure using their own human reproductive mate-
rial, or that of any other donor, without the patient's informed written
consent. It will also afford a civil remedy against donors and fertility
clinics.
Patients must feel confident that the reproductive material used to have
their child is the material that they have consented to using. Estab-
lishing a right to sue for the act of fertility fraud will validate a
victim's experience and will make it easier to seek justice when they
have been wronged.
PRIOR LEGISLATIVE HISTORY:
A.1091a of 2021 and 2022, referred to judiciary. Same as 5.9073 of 2022,
referred to codes.
A.11141, 2020, referred to judiciary.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
On the ninetieth day after it shall have become law.
STATE OF NEW YORK
________________________________________________________________________
2845--A
2023-2024 Regular Sessions
IN ASSEMBLY
January 27, 2023
___________
Introduced by M. of A. PAULIN, DINOWITZ, FAHY, L. ROSENTHAL, ZEBROWSKI,
SEAWRIGHT, MAGNARELLI, SIMON, ROZIC, OTIS, McDONOUGH -- read once and
referred to the Committee on Judiciary -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the civil rights law and the education law, in relation
to establishing a cause of action for fertility fraud
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 5 of the civil rights law is amended by adding a
2 new section 52-e to read as follows:
3 § 52-e. Private right of action for fertility fraud. 1. Any patient
4 who has undergone an assisted reproduction procedure with a health care
5 provider, any intended parent, the spouse of any patient who has under-
6 gone an assisted reproduction procedure with a health care provider, the
7 spouse of any intended parent, or a child or person born as a result of
8 such assisted reproduction procedure shall have a private right of
9 action for damages against such health care provider under any of the
10 following conditions:
11 (a) such health care provider knowingly or intentionally performs an
12 assisted reproduction procedure using the human reproductive material of
13 the health care provider or any other donor without the patient's
14 informed written consent to treatment using human reproductive material
15 from the health care provider or from any donor other than a donor from
16 whom the patient consented to in writing; or
17 (b) such health care provider intentionally performs an assisted
18 reproduction procedure and such health care provider knows or reasonably
19 should have known that the human reproductive material was used: (i)
20 without the donor's consent; or (ii) in a manner or to an extent other
21 than that to which the donor consented.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07114-05-3
A. 2845--A 2
1 2. Any patient who has undergone an assisted reproduction procedure,
2 any intended parent, the spouse of any patient who has undergone an
3 assisted reproduction procedure, the spouse of any intended parent, or a
4 child or person born as a result of such assisted reproduction procedure
5 shall have a private right of action for damages against a donor or
6 assisted reproductive service provider under any of the following condi-
7 tions:
8 (a) such donor or assisted reproductive service provider knowingly
9 provides false or misleading information about the donor's medical
10 history including but not limited to an illness at the time of donation,
11 any past illness of the donor, or the genetic or family history of the
12 donor for the past two generations which is known to the donor at the
13 time of donation; or
14 (b) such assisted reproductive service provider knowingly uses or
15 provides human reproductive material for an assisted reproduction proce-
16 dure in a manner or to an extent other than that to which the patient
17 consented.
18 3. A donor of human reproductive material shall have a cause of action
19 against a health care provider or assisted reproductive service provid-
20 er, if the donor's human reproductive material was used: (a) without the
21 donor's consent; or (b) in a manner or to an extent other than that to
22 which the donor consented.
23 4. Damages recovered by a plaintiff pursuant to this section shall
24 include compensatory damages, including plaintiff's emotional distress
25 arising from defendant's conduct. In addition thereto, the trier of
26 fact may award punitive damages and such other non-monetary relief as
27 may be appropriate.
28 5. Nothing in this section shall be deemed to abrogate or otherwise
29 limit any right or remedy otherwise conferred by federal or state law,
30 including but not limited to, any right or remedy related to child
31 support, nor shall any award under this section be used to offset child
32 support obligations that may arise in connection with this section.
33 6. A cause of action under this section shall be commenced no later
34 than six years from the date a person discovers, or reasonably should
35 have discovered, the fertility fraud.
36 7. For purposes of this section, the following terms shall have the
37 following meanings:
38 (a) "donor" shall mean an individual who does not intend to be a
39 parent, who produces human reproductive material and provides such human
40 reproductive material to another person, other than the individual's
41 spouse, for use in an assisted reproduction procedure;
42 (b) "human reproductive material" shall mean:
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) "patient" shall mean any individual injected or implanted with
47 human reproductive material; and
48 (d) "intended parent" shall have the same meaning as in subdivision
49 (l) of section 581-102 of the family court act.
50 § 2. Section 6530 of the education law is amended by adding a new
51 subdivision 51 to read as follows:
52 51. (a) Knowingly or intentionally performing an assisted reproduction
53 procedure using the human reproductive material of the licensee or any
54 other donor without the patient's informed written consent to treatment
55 using human reproductive material from the licensee or from any donor
56 other than a donor from whom the patient consented to in writing; or
A. 2845--A 3
1 (b) intentionally performing an assisted reproduction procedure and
2 such licensee knows or reasonably should have known that the human
3 reproductive material was used:
4 (i) without the donor's consent; or
5 (ii) in a manner or to an extent other than that to which the donor
6 consented.
7 § 3. This act shall take effect on the ninetieth day after it shall
8 have become a law, and shall apply to acts occurring on or after such
9 date.
