BILL NUMBER: S9073

SPONSOR: CLEARE
 
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, 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, the spouse of any patient who has undergone an
assisted reproduction procedure, 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 reproductive 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 reproductive 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. In awarding damages, the court may
consider the emotional impact of the defendant's conduct.

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 reme-
dy 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, the fertility fraud.

Subdivision seven defines terms used in this section.

Section three amend section 6530 of the education law to provide that a
physician is guilty of profession misconduct if found liable for fertil-
ity 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:

A.11141, 2020, referred to judiciary

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
On the ninetieth day after it shall have become law.