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A00526 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A526
 
SPONSOR: Paulin
  TITLE OF BILL: An act to amend the civil rights law and the education law, in relation to establishing a cause of action for fertility fraud   PURPOSE: To provide civil recourse to patients, spouses, and children when a. physician service provider, or donor commits fertility fraud.   SUMMARY OF PROVISIONS: Section one adds a new section 52-d to the civil rights law, creating a private right of action for fertility fraud. Subdivision one provides that any patient who has undergone an assisted reproduction procedure with a health care provider, any intended parent, their spouse, and a child or person born as a result of such assisted reproductive procedure shall have a private right of action for damages against such health care provider when: (a) such health care provider knowingly or inten- tionally performs an assisted reproduction procedure using the human reproductive material of the health care provider or any other donor without the patient's informed written consent, or from any donor other than a donor from whom the patient consented in writing; or (b) such health care provider intentionally performs an assisted reproduction procedure and such health care provider knows or reasonably should have known that the human reproductive material was used: (i) without the donor's consent; or (ii) in a manner or to an extent other than that to which the donor consented. Subdivision two provides that any patient who has undergone an assisted reproduction procedure, any intended parent, their spouse, or a child or person born as a result of such assisted reproduction procedure shall have a private right of action for damages against a donor or assisted reproductive service provider where (a) such donor or assisted reproduc- tive service provider knowingly provides false or misleading information about the donor's medical history including but not limited to an illness at the time of donation, any past illness, of the donor, or genetic or family history of the donor for the past two generations which is known to the donor at the time of donation; or such assisted reproductive service provider knowingly uses or provides human reproduc- tive material for an assisted reproduction procedure in a manner or to an extent other than that to which the patient consented. Subdivision three provides that a donor of human reproductive material shall have a cause of action against a health care provider or assisted reproductive service provider, if the donor's human reproductive materi- al was used: (i) without the donor's consent; or (ii) in a manner or to an extent other than that to which the donor consented. Subdivision four provides that damages recovered by a plaintiff pursuant to this section shall include compensatory damages. In addition, the trier of fact may award punitive damages and such other non-monetary relief as may be appropriate. Subdivision five provides that nothing in this section shall be deemed to abrogate or otherwise limit any right or remedy otherwise conferred 'by federal or state law including but not limited to, any right or remedy related to child support, nor shall any award under this section be used to offset child support obligations that may arise in connection with this section. Subdivision six provides that a cause of action under this section shall be commenced no later than six years from the date a person discovers, or reasonably should have discovered fertility fraud. Subdivision seven defines terms used in this section. Section two amend section 6530 of the education law to provide that a physician is guilty of professional misconduct if they commit fertility fraud. Section three provides the effective date.   JUSTIFICATION: Several recent high-profile cases of doctors using their own sperm to inseminate patients have brought attention to the issue of fertility fraud. One Indiana doctor used his sperm Instead of the intended donor sperm and has been found to have fathered at least sixty children, born in the 1970s and 1980s. Vocal patients who were victims of a doctor's fraud in Texas exposed his actions and were successful in advocating for the passage of fertility fraud legislation in their state. Currently, Indiana, California, and Texas have enacted laws creating a civil right of action for fertility fraud. Civil bills have also been introduced and are pending in Colorado, -Nebraska, Ohio, and Florida. New York law must protect the dignity of women undergoing assisted reproduction procedures. If a doctor violates their professional oath and takes advantage of a patient's confidence by using reproductive material without prior consent, there must be judicial recourse avail- able to victims. Learning that one has received unintended reproductive material without consent is the ultimate betrayal of trust and would leave a patient feeling nothing less than deceit and violation. This legislation creates a civil right of action against a health care provider when such provider knowingly or intentionally performs an assisted reproductive procedure using their own human reproductive mate- rial, or that of any other donor, without the patient's informed written consent. It will also afford a civil remedy against donors and fertility clinics. Patients must feel confident that the reproductive material used to have their child is the material that they have consented to using. Estab- lishing a right to sue for the act of fertility fraud will validate a victim's experience and will make it easier to seek justice when they have been wronged.   PRIOR LEGISLATIVE HISTORY: A2845A of 2023 and 2024, referred to judiciary. Same as S4269A of 2023 and 2024, referred to codes A.1091a of 2021 and 2022, referred to judiciary. Same as S.9073 of 2022, referred to codes. A.11141, 2020, referred to judiciary.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: On the ninetieth day after it shall have become law.
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