S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1114
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 13, 2023
                                ___________
 
 Introduced  by  M.  of A. JACOBSON, LUNSFORD, BYRNES, HEVESI, SEAWRIGHT,
   PRETLOW, ZEBROWSKI, FAHY -- read once and referred 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:
 
   Section 1. Section 130.65-a of the penal law, as added by chapter 1 of
 the laws of 2000, subdivision 1 as amended by chapter 485 of the laws of
 2009, is amended to read as follows:
 § 130.65-a Aggravated sexual abuse in the fourth degree.
   1. A person is guilty of aggravated sexual abuse in the fourth  degree
 when:
   (a)  He or she inserts a foreign object in the vagina, urethra, penis,
 rectum or anus of another person and the other person  is  incapable  of
 consent  by  reason  of some factor other than being less than seventeen
 years old; [or]
   (b) He or she inserts a finger in the vagina, urethra,  penis,  rectum
 or  anus  of  another  person causing physical injury to such person and
 such person is incapable of consent by reason of some factor other  than
 being less than seventeen years old; OR
   (C)  (I) HE OR SHE IS A HEALTH CARE PRACTITIONER WHO, IN THE COURSE OF
 PERFORMING AN ASSISTED REPRODUCTION PROCEDURE ON A PATIENT,  USES  HUMAN
 REPRODUCTIVE  MATERIAL  FROM  THE PRACTITIONER OR FROM A DONOR WHERE THE
 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
              

 A. 1114                             2
 
 NOT EXPRESSLY CONSENTED TO THE USE OF HUMAN REPRODUCTIVE  MATERIAL  FROM
 SUCH PRACTITIONER OR DONOR.
   (II)  AS  USED  IN  THIS PARAGRAPH, THE FOLLOWING TERMS SHALL HAVE THE
 FOLLOWING MEANINGS:
   (1) "HEALTH CARE PRACTITIONER" MEANS A PHYSICIAN,  NURSE  PRACTITIONER
 OR PHYSICIAN ASSISTANT.
   (2)  "HUMAN REPRODUCTIVE MATERIAL" MEANS A HUMAN SPERMATOZOON OR OVUM,
 OR A HUMAN ORGANISM AT ANY STAGE OF DEVELOPMENT FROM FERTILIZED OVUM  TO
 EMBRYO.
   (3)  "ASSISTED REPRODUCTION" MEANS A METHOD OF CAUSING PREGNANCY OTHER
 THAN SEXUAL INTERCOURSE. THE TERM  INCLUDES  INTRAUTERINE  INSEMINATION,
 DONATION OF EGGS, DONATION OF EMBRYOS, IN VITRO FERTILIZATION AND TRANS-
 FER OF EMBRYOS AND INTRACYTOPLASMIC SPERM INJECTION.
   (4)  "DONOR" MEANS AN INDIVIDUAL WHO PROVIDES HUMAN REPRODUCTIVE MATE-
 RIAL TO BE USED FOR ASSISTED REPRODUCTION,  REGARDLESS  OF  WHETHER  THE
 EGGS OR SPERM ARE PROVIDED FOR CONSIDERATION.
   2.  Conduct performed for a valid medical purpose does not violate the
 provisions of PARAGRAPHS (A) AND (B) OF SUBDIVISION ONE OF this section.
   Aggravated sexual abuse in the fourth degree is a class E felony.
   § 2. Subdivision 3 of section 30.10 of the criminal procedure  law  is
 amended by adding a new paragraph (h) to read as follows:
   (H)  A  PROSECUTION  FOR  AGGRAVATED SEXUAL ABUSE IN THE FOURTH DEGREE
 INVOLVING FERTILITY FRAUD AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE
 OF SECTION 130.65-A OF THE PENAL LAW MAY BE COMMENCED WITHIN THREE YEARS
 AFTER THE FACTS CONSTITUTING SUCH OFFENSE ARE DISCOVERED BY AN AGGRIEVED
 PARTY THROUGH DNA (DEOXYRIBONUCLEIC ACID) ANALYSIS, A  RECORDING,  DOCU-
 MENTS  OR  OTHER  INSTRUMENT  TO  PROVIDE EVIDENCE SUFFICIENT TO BRING A
 PROSECUTION, OR THE DEFENDANT CONFESSES TO THE OFFENSE, WHICHEVER OCCURS
 LATER.
   § 3. The public health law is amended by adding a new  section  2500-l
 to read as follows:
   § 2500-L. PRIVATE RIGHT OF ACTION; FERTILITY FRAUD. 1. AS USED IN THIS
 SECTION THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A)  "ASSISTED REPRODUCTION PROCEDURE" MEANS A METHOD OF CAUSING PREG-
 NANCY OTHER THAN SEXUAL INTERCOURSE. THE TERM INCLUDES:
   (I) INTRAUTERINE INSEMINATION;
   (II) DONATION OF EGGS;
   (III) DONATION OF EMBRYOS;
   (IV) IN VITRO FERTILIZATION AND TRANSFER OF EMBRYOS; AND
   (V) INTRACYTOPLASMIC SPERM INJECTION.
   (B) "HUMAN REPRODUCTIVE MATERIAL" MEANS:
   (I) A HUMAN SPERMATOZOON OR OVUM; OR
   (II) A HUMAN ORGANISM AT ANY STAGE OF DEVELOPMENT FROM FERTILIZED OVUM
 TO EMBRYO.
   (C) "HEALTH CARE PRACTITIONER" MEANS A PHYSICIAN,  NURSE  PRACTITIONER
 OR PHYSICIAN ASSISTANT LICENSED UNDER THE EDUCATION LAW.
   (D)  "DONOR" MEANS AN INDIVIDUAL WHO PROVIDES HUMAN REPRODUCTIVE MATE-
 RIAL TO BE USED FOR ASSISTED REPRODUCTION,  REGARDLESS  OF  WHETHER  THE
 EGGS OR SPERM ARE PROVIDED FOR CONSIDERATION.
   (E) "ASSISTED REPRODUCTIVE SERVICE PROVIDER" MEANS A MEDICAL PROVIDER,
 FERTILITY    CLINIC,  OR REPRODUCTIVE TISSUE BANK (WHICH SHALL INCLUDE A
 GAMETE BANK), OR ANY OTHER ENTITY WHICH EITHER PROVIDES ASSISTED  REPRO-
 DUCTIVE  SERVICES  IN  NEW  YORK STATE OR FOR WHICH ANY COMPONENT OF THE
 ASSISTED REPRODUCTIVE SERVICES ARRANGED BY THE ENTITY  IS  PERFORMED  IN
 NEW YORK STATE.
 A. 1114                             3
 
   (F)  "REPRODUCTIVE  TISSUE  BANK" MEANS A FACILITY   WHICH   ACQUIRES,
 PROCESSES, STORES, DISTRIBUTES AND/OR RELEASES REPRODUCTIVE TISSUE TO AN
 INSEMINATION/IMPLANTATION SITE FOR USE  IN  ARTIFICIAL  INSEMINATION  OR
 ASSISTED REPRODUCTIVE PROCEDURES. REPRODUCTIVE TISSUE BANKS INCLUDE, BUT
 ARE  NOT  LIMITED  TO,  SEMEN BANKS, OOCYTE DONATION PROGRAMS AND EMBRYO
 BANKS.
   (G) "INSEMINATION/IMPLANTATION SITE" MEANS A LOCATION AT WHICH ARTIFI-
 CIAL INSEMINATION OR ASSISTED  REPRODUCTIVE  PROCEDURES  ARE  PERFORMED,
 USING  REPRODUCTIVE TISSUE FROM ANONYMOUS DONORS, DIRECTED DONORS AND/OR
 CLIENT-DEPOSITORS, INCLUDING,  SEMEN  PROCESSING,  LIMITED  TO  WASHING,
 CONCENTRATING  AND  STORING OF SEMEN FROM PATIENTS OF PHYSICIANS ASSOCI-
 ATED WITH THE LICENSED INSEMINATION/IMPLANTATION SITES OR THE  PATIENTS'
 REGULAR  SEXUAL  PARTNERS, AS WELL AS LIMITED SEMEN STORAGE OF LESS THAN
 SIX MONTHS' DURATION.
   (H) "SEMEN PROCESSING FACILITY" MEANS  A  TISSUE  PROCESSING  FACILITY
 THAT PROCESSES SEMEN FOR USE BY OTHER LICENSED REPRODUCTIVE TISSUE BANKS
 AND INSEMINATION/IMPLANTATION SITES.
   2. (A) THE PATIENT, AFTER BEING TREATED FOR INFERTILITY BY AN ASSISTED
 REPRODUCTION  PROCEDURE,  AND IN THE EVENT THAT SUCH PATIENT GIVES BIRTH
 TO A CHILD, THE SPOUSE OF SUCH PATIENT, THE  SURVIVING  SPOUSE  OF  SUCH
 PATIENT,  THE  LEGALLY DETERMINED PARENT, OR A CHILD BORN AS A RESULT OF
 THE ACTIONS DESCRIBED IN THIS SECTION  SHALL  HAVE  A  CAUSE  OF  ACTION
 AGAINST:
   (I)  A HEALTH CARE PRACTITIONER WHO KNOWINGLY, INTENTIONALLY OR NEGLI-
 GENTLY PERFORMED AN ASSISTED  REPRODUCTION  PROCEDURE  ON  SUCH  PATIENT
 USING:
   (1)  SUCH  HEALTH CARE PRACTITIONER'S OWN HUMAN REPRODUCTIVE MATERIAL;
 OR
   (2) THE HUMAN REPRODUCTIVE MATERIAL OF ANY DONOR WITHOUT THE  INFORMED
 WRITTEN  CONSENT  OF  SUCH  PATIENT TO TREATMENT USING SUCH REPRODUCTIVE
 MATERIAL.
   (II) A DONOR, HEALTH CARE PRACTITIONER, ASSISTED REPRODUCTIVE  SERVICE
 PROVIDER,  REPRODUCTIVE  TISSUE  BANK, INSEMINATION/IMPLANTATION SITE OR
 SEMEN PROCESSING FACILITY WHO:
   (1) KNOWINGLY, INTENTIONALLY OR NEGLIGENTLY PROVIDES FALSE OR MISLEAD-
 ING INFORMATION ABOUT THE DONOR'S IDENTITY INCLUDING BUT NOT LIMITED TO:
 THE DONOR'S NAME, THE DONOR'S BIRTHDATE, THE DONOR'S ADDRESS AT THE TIME
 OF DONATION, THE DONOR'S MEDICAL HISTORY INCLUDING BUT NOT LIMITED TO AN
 ILLNESS AT THE TIME OF DONATION, ANY PAST ILLNESS OF THE  DONOR  OR  THE
 SOCIAL, GENETIC OR FAMILY HISTORY OF THE DONOR;
   (2)  KNOWINGLY,  INTENTIONALLY  OR  NEGLIGENTLY USES OR PROVIDES HUMAN
 REPRODUCTIVE MATERIAL FOR AN ASSISTED REPRODUCTION PROCEDURE OTHER  THAN
 WHAT WAS AGREED TO BY THE PATIENT TO BE PROVIDED;
   (3)  VIOLATES  AGREEMENTS BETWEEN THE DONOR AND THE ASSISTED REPRODUC-
 TIVE     SERVICE      PROVIDER,      REPRODUCTIVE      TISSUE      BANK,
 INSEMINATION/IMPLANTATION SITE OR SEMEN PROCESSING FACILITY; OR
   (4)  VIOLATES  THE  REGULATIONS UNDER SUBPART 52-8 OF TITLE TEN OF THE
 NEW YORK CODES, RULES AND REGULATIONS, AS AMENDED FROM TIME TO TIME, FOR
 REPRODUCTIVE TISSUE  BANKS,  INSEMINATION/IMPLANTATION  SITES  OR  SEMEN
 PROCESSING FACILITIES, INCLUDING BUT NOT LIMITED TO THOSE REGULATIONS ON
 DONOR QUALIFICATIONS, REQUIRED LABORATORY TESTS, COLLECTION, STORAGE AND
 DISPOSITION  OF  REPRODUCTIVE TISSUE, INFORMED CONSENT, REQUIRED RECORDS
 AND QUALITY ASSURANCE AND SAFETY.
   (B) EACH CHILD BORN PURSUANT TO  PARAGRAPH  (A)  OF  THIS  SUBDIVISION
 SHALL CONSTITUTE A SEPARATE CAUSE OF ACTION.
 A. 1114                             4
 
   3.  (A)  A  DONOR OF HUMAN REPRODUCTIVE MATERIAL SHALL HAVE A CAUSE OF
 ACTION AGAINST A HEALTH  CARE  PRACTITIONER  WHO  PERFORMS  AN  ASSISTED
 REPRODUCTION  PROCEDURE  USING  SUCH DONOR'S HUMAN REPRODUCTIVE MATERIAL
 WHO KNEW OR REASONABLY SHOULD HAVE KNOWN THAT  SUCH  HUMAN  REPRODUCTIVE
 MATERIAL WAS USED EITHER:
   (I) WITHOUT SUCH DONOR'S CONSENT;
   (II)  IN  A  MANNER  OR  TO  AN  EXTENT OTHER THAN TO WHICH SUCH DONOR
 CONSENTED; OR
   (III) IN A MANNER THAT VIOLATES THE REGULATIONS UNDER SUBPART 52-8  OF
 TITLE  TEN OF THE NEW YORK CODES, RULES AND REGULATIONS, AS AMENDED FROM
 TIME TO TIME, FOR REPRODUCTIVE TISSUE  BANKS,  INSEMINATION/IMPLANTATION
 SITES OR SEMEN PROCESSING FACILITIES, INCLUDING BUT NOT LIMITED TO THOSE
 REGULATIONS ON REQUIRED LABORATORY TESTS, COLLECTION, STORAGE AND DISPO-
 SITION  OF  REPRODUCTIVE  TISSUE, INFORMED CONSENT, REQUIRED RECORDS AND
 QUALITY ASSURANCE AND SAFETY.
   (B) EACH INDIVIDUAL WHO RECEIVES AN  ASSISTED  REPRODUCTION  PROCEDURE
 PURSUANT  TO  THE  PROVISIONS OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL
 CONSTITUTE A SEPARATE CAUSE OF ACTION.
   4. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B)  OF  THIS  SUBDIVISION,  AN
 ACTION PURSUANT TO THIS SECTION SHALL BE COMMENCED NO LATER THAN:
   (I)  TEN  YEARS  AFTER  THE EIGHTEENTH BIRTHDAY OF THE CHILD CONCEIVED
 THROUGH THE ASSISTED REPRODUCTION PROCEDURE WHICH IS THE SUBJECT OF SUCH
 ACTION; OR
   (II) TEN YEARS AFTER AN ASSISTED REPRODUCTION PROCEDURE WAS  PERFORMED
 IF SUBPARAGRAPH (I) OF THIS PARAGRAPH IS NOT APPLICABLE.
   (B)  AN ACTION PURSUANT TO THIS SECTION THAT WOULD OTHERWISE BE BARRED
 UNDER THIS SECTION MAY BE COMMENCED NOT LATER THAN THREE YEARS AFTER THE
 EARLIEST OF THE DATE ON WHICH:
   (I) THE PERSON FIRST DISCOVERS EVIDENCE SUFFICIENT TO BRING AN  ACTION
 AGAINST  THE  DEFENDANT  THROUGH DNA (DEOXYRIBONUCLEIC ACID) ANALYSIS, A
 RECORDING, DOCUMENTS OR OTHER INSTRUMENT THAT PROVIDES  EVIDENCE  SUFFI-
 CIENT TO BRING AN ACTION AGAINST THE DEFENDANT; OR
   (II) THE DEFENDANT CONFESSES TO THE OFFENSE.
   5.  A  PLAINTIFF WHO PREVAILS IN AN ACTION UNDER THIS SECTION SHALL BE
 ENTITLED TO:
   (A) REASONABLE ATTORNEYS' FEES;
   (B) COMPENSATORY, PUNITIVE AND ECONOMIC DAMAGES; AND
   (C) IF SUCH PLAINTIFF COMMENCED SUCH ACTION  PURSUANT  TO  SUBDIVISION
 TWO OF THIS SECTION, THE COSTS OF THE ASSISTED REPRODUCTION PROCEDURE.
   6.  NOTHING  IN  THIS  SECTION SHALL BE CONSTRUED TO PROHIBIT A PERSON
 FROM PURSUING ANY OTHER REMEDY PROVIDED BY LAW.
   § 4. Section 6530 of the education law is  amended  by  adding  a  new
 subdivision 51 to read as follows:
   51.  CONVICTED  OF  A VIOLATION OF PARAGRAPH (C) OF SUBDIVISION ONE OF
 SECTION 130.65-A OF THE PENAL LAW OR FOUND LIABLE  FOR  FERTILITY  FRAUD
 UNDER SECTION TWENTY-FIVE HUNDRED-L OF THE PUBLIC HEALTH LAW.
   § 5. This act shall take effect immediately.