STATE OF NEW YORK ________________________________________________________________________ 2845 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 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. 22 2. Any patient who has undergone an assisted reproduction procedure, 23 any intended parent, the spouse of any patient who has undergone an 24 assisted reproduction procedure, the spouse of any intended parent, or a EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07114-01-3A. 2845 2 1 child or person born as a result of such assisted reproduction procedure 2 shall have a private right of action for damages against a donor or 3 assisted reproductive service provider under any of the following condi- 4 tions: 5 (a) such donor or assisted reproductive service provider knowingly 6 provides false or misleading information about the donor's medical 7 history including but not limited to an illness at the time of donation, 8 any past illness of the donor, or the genetic or family history of the 9 donor for the past two generations which is known to the donor at the 10 time of donation; or 11 (b) such assisted reproductive service provider knowingly uses or 12 provides human reproductive material for an assisted reproduction proce- 13 dure in a manner or to an extent other than that to which the patient 14 consented. 15 3. A donor of human reproductive material shall have a cause of action 16 against a health care provider or assisted reproductive service provid- 17 er, if the donor's human reproductive material was used: (a) without the 18 donor's consent; or (b) in a manner or to an extent other than that to 19 which the donor consented. 20 4. Damages recovered by a plaintiff pursuant to this section shall 21 include compensatory damages. In addition thereto, the trier of fact may 22 award punitive damages and such other non-monetary relief as may be 23 appropriate. In awarding damages, the court may consider the emotional 24 impact of the defendant's conduct. 25 5. Nothing in this section shall be deemed to abrogate or otherwise 26 limit any right or remedy otherwise conferred by federal or state law, 27 including but not limited to, any right or remedy related to child 28 support, nor shall any award under this section be used to offset child 29 support obligations that may arise in connection with this section. 30 6. A cause of action under this section shall be commenced no later 31 than six years from the date a person discovers, or reasonably should 32 have discovered, the fertility fraud. 33 7. For purposes of this section, the following terms shall have the 34 following meanings: 35 (a) "donor" shall mean an individual who does not intend to be a 36 parent, who produces human reproductive material and provides such human 37 reproductive material to another person, other than the individual's 38 spouse, for use in an assisted reproduction procedure; 39 (b) "human reproductive material" shall mean: 40 (i) a human spermatozoon or ovum; or 41 (ii) a human organism at any stage of development from fertilized ovum 42 to embryo; 43 (c) "patient" shall mean any individual injected or implanted with 44 human reproductive material; and 45 (d) "intended parent" shall have the same meaning as in subdivision 46 (l) of section 581-102 of the family court act. 47 § 2. Section 6530 of the education law is amended by adding a new 48 subdivision 51 to read as follows: 49 51. (a) Knowingly or intentionally performing an assisted reproduction 50 procedure using the human reproductive material of the licensee or any 51 other donor without the patient's informed written consent to treatment 52 using human reproductive material from the licensee or from any donor 53 other than a donor from whom the patient consented to in writing; or 54 (b) intentionally performing an assisted reproduction procedure and 55 such licensee knows or reasonably should have known that the human 56 reproductive material was used:A. 2845 3 1 (i) without the donor's consent; or 2 (ii) in a manner or to an extent other than that to which the donor 3 consented. 4 § 3. This act shall take effect on the ninetieth day after it shall 5 have become a law, and shall apply to acts occurring on or after such 6 date.