Bill Text: NY S05359 | 2023-2024 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced) 2024-01-03 - REFERRED TO CODES [S05359 Detail]
Download: New_York-2023-S05359-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5359 2023-2024 Regular Sessions IN SENATE March 2, 2023 ___________ Introduced by Sen. FERNANDEZ -- read twice and ordered printed, and when printed to be committed to the Committee on Codes 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 18 practitioner knows or reasonably should have known that such patient had EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00574-02-3S. 5359 2 1 not expressly consented to the use of human reproductive material from 2 such practitioner or donor. 3 (ii) As used in this paragraph, the following terms shall have the 4 following meanings: 5 (1) "Health care practitioner" means a physician, nurse practitioner 6 or physician assistant. 7 (2) "Human reproductive material" means a human spermatozoon or ovum, 8 or a human organism at any stage of development from fertilized ovum to 9 embryo. 10 (3) "Assisted reproduction" means a method of causing pregnancy other 11 than sexual intercourse. The term includes intrauterine insemination, 12 donation of eggs, donation of embryos, in vitro fertilization and trans- 13 fer of embryos and intracytoplasmic sperm injection. 14 (4) "Donor" means an individual who provides human reproductive mate- 15 rial to be used for assisted reproduction, regardless of whether the 16 eggs or sperm are provided for consideration. 17 2. Conduct performed for a valid medical purpose does not violate the 18 provisions of paragraphs (a) and (b) of subdivision one of this section. 19 Aggravated sexual abuse in the fourth degree is a class E felony. 20 § 2. Subdivision 3 of section 30.10 of the criminal procedure law is 21 amended by adding a new paragraph (h) to read as follows: 22 (h) A prosecution for aggravated sexual abuse in the fourth degree 23 involving fertility fraud as defined in paragraph (c) of subdivision one 24 of section 130.65-a of the penal law may be commenced within three years 25 after the facts constituting such offense are discovered by an aggrieved 26 party through DNA (deoxyribonucleic acid) analysis, a recording, docu- 27 ments or other instrument to provide evidence sufficient to bring a 28 prosecution, or the defendant confesses to the offense, whichever occurs 29 later. 30 § 3. The public health law is amended by adding a new section 2500-l 31 to read as follows: 32 § 2500-l. Private right of action; fertility fraud. 1. As used in this 33 section the following terms shall have the following meanings: 34 (a) "Assisted reproduction procedure" means a method of causing preg- 35 nancy other than sexual intercourse. The term includes: 36 (i) intrauterine insemination; 37 (ii) donation of eggs; 38 (iii) donation of embryos; 39 (iv) in vitro fertilization and transfer of embryos; and 40 (v) intracytoplasmic sperm injection. 41 (b) "Human reproductive material" means: 42 (i) a human spermatozoon or ovum; or 43 (ii) a human organism at any stage of development from fertilized ovum 44 to embryo. 45 (c) "Health care practitioner" means a physician, nurse practitioner 46 or physician assistant licensed under the education law. 47 (d) "Donor" means an individual who provides human reproductive mate- 48 rial to be used for assisted reproduction, regardless of whether the 49 eggs or sperm are provided for consideration. 50 (e) "Assisted reproductive service provider" means a medical provider, 51 fertility clinic, or reproductive tissue bank (which shall include a 52 gamete bank), or any other entity which either provides assisted repro- 53 ductive services in New York state or for which any component of the 54 assisted reproductive services arranged by the entity is performed in 55 New York state.S. 5359 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, the legally determined parent, or a child born as a result of 22 the actions described in this section shall have a cause of action 23 against: 24 (i) a health care practitioner who knowingly, intentionally or negli- 25 gently performed an assisted reproduction procedure on such patient 26 using: 27 (1) such health care practitioner's own human reproductive material; 28 or 29 (2) the human reproductive material of any donor without the informed 30 written consent of such patient to treatment using such reproductive 31 material. 32 (ii) a donor, health care practitioner, assisted reproductive service 33 provider, reproductive tissue bank, insemination/implantation site or 34 semen processing facility who: 35 (1) knowingly, intentionally or negligently provides false or mislead- 36 ing information about the donor's identity including but not limited to: 37 the donor's name, the donor's birthdate, the donor's address at the time 38 of donation, the donor's medical history including but not limited to an 39 illness at the time of donation, any past illness of the donor or the 40 social, genetic or family history of the donor; 41 (2) knowingly, intentionally or negligently uses or provides human 42 reproductive material for an assisted reproduction procedure other than 43 what was agreed to by the patient to be provided; 44 (3) violates agreements between the donor and the assisted reproduc- 45 tive service provider, reproductive tissue bank, 46 insemination/implantation site or semen processing facility; or 47 (4) violates the regulations under subpart 52-8 of title ten of the 48 New York codes, rules and regulations, as amended from time to time, for 49 reproductive tissue banks, insemination/implantation sites or semen 50 processing facilities, including but not limited to those regulations on 51 donor qualifications, required laboratory tests, collection, storage and 52 disposition of reproductive tissue, informed consent, required records 53 and quality assurance and safety. 54 (b) Each child born pursuant to paragraph (a) of this subdivision 55 shall constitute a separate cause of action.S. 5359 4 1 3. (a) A donor of human reproductive material shall have a cause of 2 action against a health care practitioner who performs an assisted 3 reproduction procedure using such donor's human reproductive material 4 who knew or reasonably should have known that such human reproductive 5 material was used either: 6 (i) without such donor's consent; 7 (ii) in a manner or to an extent other than to which such donor 8 consented; or 9 (iii) in a manner that violates the regulations under subpart 52-8 of 10 title ten of the New York codes, rules and regulations, as amended from 11 time to time, for reproductive tissue banks, insemination/implantation 12 sites or semen processing facilities, including but not limited to those 13 regulations on required laboratory tests, collection, storage and dispo- 14 sition of reproductive tissue, informed consent, required records and 15 quality assurance and safety. 16 (b) Each individual who receives an assisted reproduction procedure 17 pursuant to the provisions of paragraph (a) of this subdivision shall 18 constitute a separate cause of action. 19 4. (a) Except as provided in paragraph (b) of this subdivision, an 20 action pursuant to this section shall be commenced no later than: 21 (i) ten years after the eighteenth birthday of the child conceived 22 through the assisted reproduction procedure which is the subject of such 23 action; or 24 (ii) ten years after an assisted reproduction procedure was performed 25 if subparagraph (i) of this paragraph is not applicable. 26 (b) An action pursuant to this section that would otherwise be barred 27 under this section may be commenced not later than three years after the 28 earliest of the date on which: 29 (i) the person first discovers evidence sufficient to bring an action 30 against the defendant through DNA (deoxyribonucleic acid) analysis, a 31 recording, documents or other instrument that provides evidence suffi- 32 cient to bring an action against the defendant; or 33 (ii) the defendant confesses to the offense. 34 5. A plaintiff who prevails in an action under this section shall be 35 entitled to: 36 (a) reasonable attorneys' fees; 37 (b) compensatory, punitive and economic damages; and 38 (c) if such plaintiff commenced such action pursuant to subdivision 39 two of this section, the costs of the assisted reproduction procedure. 40 6. Nothing in this section shall be construed to prohibit a person 41 from pursuing any other remedy provided by law. 42 § 4. Section 6530 of the education law is amended by adding a new 43 subdivision 51 to read as follows: 44 51. Convicted of a violation of paragraph (c) of subdivision one of 45 section 130.65-a of the penal law or found liable for fertility fraud 46 under section twenty-five hundred-l of the public health law. 47 § 5. This act shall take effect immediately.
