Amd §130.65-a, Pen L; amd §30.10, CP L; add §2500-l, 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.
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.
LBD00574-02-3
S. 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.
