Bill Text: NY A08562 | 2019-2020 | General Assembly | Introduced


Bill Title: Creates a private right of action for fertility fraud and adds a health care practitioner using human reproductive material from a donor knowing or 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - referred to codes [A08562 Detail]

Download: New_York-2019-A08562-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          8562

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                   September 13, 2019
                                       ___________

        Introduced by M. of A. JACOBSON -- read once and referred to the Commit-
          tee on Codes

        AN ACT to amend the penal law, in relation to aggravated sexual abuse in
          the  fourth degree; and to amend the public health law, in relation to
          creating a private right 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. 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 a donor knowing  or  reasonably  should  have
    18  known  that such patient had not expressly consented to the use of human
    19  reproductive material from such donor.
    20    (ii) As used in this paragraph, the following  terms  shall  have  the
    21  following meanings:
    22    (1)  "Health  care practitioner" means a physician, nurse practitioner
    23  or physician assistant.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13688-03-9

        A. 8562                             2

     1    (2) "Human reproductive material" means a human spermatozoon or  ovum,
     2  or  a human organism at any stage of development from fertilized ovum to
     3  embryo.
     4    (3)  "Assisted reproduction" means a method of causing pregnancy other
     5  than sexual intercourse. The term  includes  intrauterine  insemination,
     6  donation of eggs, donation of embryos, in vitro fertilization and trans-
     7  fer of embryos and intracytoplasmic sperm injection.
     8    (4)  "Donor" means an individual who provides human reproductive mate-
     9  rial to be used for assisted reproduction,  regardless  of  whether  the
    10  eggs or sperm are provided for consideration.
    11    2.  Conduct performed for a valid medical purpose does not violate the
    12  provisions of paragraphs (a) and (b) of subdivision one of this section.
    13    Aggravated sexual abuse in the fourth degree is a class E felony.
    14    § 2. The public health law is amended by adding a new  section  2500-l
    15  to read as follows:
    16    § 2500-l. Private right of action; fertility fraud. 1. As used in this
    17  section the following terms shall have the following meanings:
    18    (a)  "Assisted reproduction procedure" means a method of causing preg-
    19  nancy other than sexual intercourse. The term includes:
    20    (i) intrauterine insemination;
    21    (ii) donation of eggs;
    22    (iii) donation of embryos;
    23    (iv) in vitro fertilization and transfer of embryos; and
    24    (v) intracytoplasmic sperm injection.
    25    (b) "Human reproductive material" means:
    26    (i) a human spermatozoon or ovum; or
    27    (ii) a human organism at any stage of development from fertilized ovum
    28  to embryo.
    29    (c) "Health care practitioner" means a physician,  nurse  practitioner
    30  or physician assistant licensed under the education law.
    31    (d)  "Donor" means an individual who provides human reproductive mate-
    32  rial to be used for assisted reproduction,  regardless  of  whether  the
    33  eggs or sperm are provided for consideration.
    34    2. (a) The patient, after being treated for infertility by an assisted
    35  reproduction  procedure,  and in the event that such patient gives birth
    36  to a child, the spouse of such patient, the  surviving  spouse  of  such
    37  patient  or  a  child  born as a result of the actions described in this
    38  section shall have a cause of action against a health care  practitioner
    39  who knowingly or intentionally performed an assisted reproduction proce-
    40  dure on such patient using:
    41    (i)  such  health care practitioner's own human reproductive material;
    42  or
    43    (ii) the human reproductive material of any donor without the informed
    44  written consent of such patient to  treatment  using  such  reproductive
    45  material.
    46    (b)  Each  child  born  pursuant  to paragraph (a) of this subdivision
    47  shall constitute a separate cause of action.
    48    3. (a) A donor of human reproductive material shall have  a  cause  of
    49  action  against  a  health  care  practitioner  who performs an assisted
    50  reproduction procedure using such donor's  human  reproductive  material
    51  who  knew  or  reasonably should have known that such human reproductive
    52  material was used either:
    53    (i) without such donor's consent; or
    54    (ii) in a manner or to an  extent  other  than  to  which  such  donor
    55  consented.

        A. 8562                             3

     1    (b)  Each  individual  who receives an assisted reproduction procedure
     2  pursuant to the provisions of paragraph (a) of  this  subdivision  shall
     3  constitute a separate cause of action.
     4    4.  (a)  Except  as  provided in paragraph (b) of this subdivision, an
     5  action pursuant to this section shall be commenced no later than:
     6    (i) ten years after the eighteenth birthday  of  the  child  conceived
     7  through the assisted reproduction procedure which is the subject of such
     8  action; or
     9    (ii)  ten years after an assisted reproduction procedure was performed
    10  if subparagraph (i) of this paragraph is not applicable.
    11    (b) An action pursuant to this section that would otherwise be  barred
    12  under this section may be commenced not later than three years after the
    13  earliest of the date on which:
    14    (i)  the person first discovers evidence sufficient to bring an action
    15  against the defendant through DNA (deoxyribonucleic  acid)  analysis,  a
    16  recording,  documents  or other instrument that provides evidence suffi-
    17  cient to bring an action against the defendant; or
    18    (ii) the defendant confesses to the offense.
    19    5. A plaintiff who prevails in an action under this section  shall  be
    20  entitled to:
    21    (a) reasonable attorneys' fees;
    22    (b) compensatory, punitive and economic damages; and
    23    (c)  if  such  plaintiff commenced such action pursuant to subdivision
    24  two of this section, the costs of the assisted reproduction procedure.
    25    6. Nothing in this section shall be construed  to  prohibit  a  person
    26  from pursuing any other remedy provided by law.
    27    § 3. This act shall take effect immediately.
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