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.
                                                                   LBD00574-02-3

        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.
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