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.
STATE OF NEW YORK
________________________________________________________________________
1091--A
2021-2022 Regular Sessions
IN ASSEMBLY
January 7, 2021
___________
Introduced by M. of A. PAULIN, DINOWITZ, FAHY, L. ROSENTHAL, ZEBROWSKI,
SEAWRIGHT, NOLAN, MAGNARELLI, GALEF, SIMON, ROZIC, GRIFFIN, OTIS,
MONTESANO, SCHMITT, McDONOUGH -- read once and referred to the Commit-
tee on Judiciary -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
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. The civil rights law is amended by adding a new section
2 52-d to read as follows:
3 § 52-d. Private right of action for fertility fraud. 1. Any patient
4 who has undergone an assisted reproduction procedure with a health care
5 provider, the spouse of any patient who has undergone an assisted
6 reproduction procedure with a health care provider, or a child or person
7 born as a result of such assisted reproduction procedure shall have a
8 private right of action for damages against such health care provider
9 under any of the following conditions:
10 (a) such health care provider knowingly or intentionally performs an
11 assisted reproduction procedure using the human reproductive material of
12 the health care provider or any other donor without the patient's
13 informed written consent to treatment using human reproductive material
14 from the health care provider or from any donor other than a donor from
15 whom the patient consented to in writing; or
16 (b) such health care provider intentionally performs an assisted
17 reproduction procedure and such health care provider knows or reasonably
18 should have known that the human reproductive material was used: (i)
19 without the donor's consent; or (ii) in a manner or to an extent other
20 than that to which the donor consented.
21 2. Any patient who has undergone an assisted reproduction procedure,
22 the spouse of any patient who has undergone an assisted reproduction
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06232-10-1
A. 1091--A 2
1 procedure, or a child or person born as a result of such assisted
2 reproduction procedure shall have a private right of action for damages
3 against a donor or assisted reproductive service provider under any of
4 the following conditions:
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; and
43 (c) "patient" shall mean any individual injected or implanted with
44 human reproductive material.
45 § 2. Section 6530 of the education law is amended by adding a new
46 subdivision 51 to read as follows:
47 51. Found liable for fertility fraud under section fifty-two-d of the
48 civil rights law.
49 § 3. This act shall take effect on the ninetieth day after it shall
50 have become a law, and shall apply to acts occurring on or after such
51 date.
