STATE OF NEW YORK
________________________________________________________________________
8562
2019-2020 Regular Sessions
IN ASSEMBLY
September 13, 2019
___________
Introduced by M. of A. JACOBSON -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the penal law, in relation to aggravated sexual abuse in
the fourth degree; and to amend the public health law, in relation to
creating a private right 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. 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 a donor knowing or reasonably should have
18 known that such patient had not expressly consented to the use of human
19 reproductive material from such donor.
20 (ii) As used in this paragraph, the following terms shall have the
21 following meanings:
22 (1) "Health care practitioner" means a physician, nurse practitioner
23 or physician assistant.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13688-03-9
A. 8562 2
1 (2) "Human reproductive material" means a human spermatozoon or ovum,
2 or a human organism at any stage of development from fertilized ovum to
3 embryo.
4 (3) "Assisted reproduction" means a method of causing pregnancy other
5 than sexual intercourse. The term includes intrauterine insemination,
6 donation of eggs, donation of embryos, in vitro fertilization and trans-
7 fer of embryos and intracytoplasmic sperm injection.
8 (4) "Donor" means an individual who provides human reproductive mate-
9 rial to be used for assisted reproduction, regardless of whether the
10 eggs or sperm are provided for consideration.
11 2. Conduct performed for a valid medical purpose does not violate the
12 provisions of paragraphs (a) and (b) of subdivision one of this section.
13 Aggravated sexual abuse in the fourth degree is a class E felony.
14 § 2. The public health law is amended by adding a new section 2500-l
15 to read as follows:
16 § 2500-l. Private right of action; fertility fraud. 1. As used in this
17 section the following terms shall have the following meanings:
18 (a) "Assisted reproduction procedure" means a method of causing preg-
19 nancy other than sexual intercourse. The term includes:
20 (i) intrauterine insemination;
21 (ii) donation of eggs;
22 (iii) donation of embryos;
23 (iv) in vitro fertilization and transfer of embryos; and
24 (v) intracytoplasmic sperm injection.
25 (b) "Human reproductive material" means:
26 (i) a human spermatozoon or ovum; or
27 (ii) a human organism at any stage of development from fertilized ovum
28 to embryo.
29 (c) "Health care practitioner" means a physician, nurse practitioner
30 or physician assistant licensed under the education law.
31 (d) "Donor" means an individual who provides human reproductive mate-
32 rial to be used for assisted reproduction, regardless of whether the
33 eggs or sperm are provided for consideration.
34 2. (a) The patient, after being treated for infertility by an assisted
35 reproduction procedure, and in the event that such patient gives birth
36 to a child, the spouse of such patient, the surviving spouse of such
37 patient or a child born as a result of the actions described in this
38 section shall have a cause of action against a health care practitioner
39 who knowingly or intentionally performed an assisted reproduction proce-
40 dure on such patient using:
41 (i) such health care practitioner's own human reproductive material;
42 or
43 (ii) the human reproductive material of any donor without the informed
44 written consent of such patient to treatment using such reproductive
45 material.
46 (b) Each child born pursuant to paragraph (a) of this subdivision
47 shall constitute a separate cause of action.
48 3. (a) A donor of human reproductive material shall have a cause of
49 action against a health care practitioner who performs an assisted
50 reproduction procedure using such donor's human reproductive material
51 who knew or reasonably should have known that such human reproductive
52 material was used either:
53 (i) without such donor's consent; or
54 (ii) in a manner or to an extent other than to which such donor
55 consented.
A. 8562 3
1 (b) Each individual who receives an assisted reproduction procedure
2 pursuant to the provisions of paragraph (a) of this subdivision shall
3 constitute a separate cause of action.
4 4. (a) Except as provided in paragraph (b) of this subdivision, an
5 action pursuant to this section shall be commenced no later than:
6 (i) ten years after the eighteenth birthday of the child conceived
7 through the assisted reproduction procedure which is the subject of such
8 action; or
9 (ii) ten years after an assisted reproduction procedure was performed
10 if subparagraph (i) of this paragraph is not applicable.
11 (b) An action pursuant to this section that would otherwise be barred
12 under this section may be commenced not later than three years after the
13 earliest of the date on which:
14 (i) the person first discovers evidence sufficient to bring an action
15 against the defendant through DNA (deoxyribonucleic acid) analysis, a
16 recording, documents or other instrument that provides evidence suffi-
17 cient to bring an action against the defendant; or
18 (ii) the defendant confesses to the offense.
19 5. A plaintiff who prevails in an action under this section shall be
20 entitled to:
21 (a) reasonable attorneys' fees;
22 (b) compensatory, punitive and economic damages; and
23 (c) if such plaintiff commenced such action pursuant to subdivision
24 two of this section, the costs of the assisted reproduction procedure.
25 6. Nothing in this section shall be construed to prohibit a person
26 from pursuing any other remedy provided by law.
27 § 3. This act shall take effect immediately.