NY State Senate Bill 2023-S80

Senate Bill S80

2023-2024 Legislative Session

Relates to aggravated sexual abuse in the fourth degree and creating a private right of action for fertility fraud; relates to the statute of limitations for such claim

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Current Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to codes
Jan 04, 2023	referred to codes

co-Sponsors

2023-S80 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §130.65-a, Pen L; amd §30.10, CP L; add §2500-m, Pub Health L; amd §6530, Ed L
Versions Introduced in 2021-2022 Legislative Session:: S7569

2023-S80 (ACTIVE) - Summary

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.

2023-S80 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S80

SPONSOR: GALLIVAN
 
TITLE OF BILL:

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 professional miscon-
duct for physicians, physician's assistants and specialist assistants

 
PURPOSE:

The purpose of this bill is to create a new crime of fertility fraud by
amending Section 130.65-a of the Penal Law, Aggravated Sexual Abuse in
the fourth degree (Class E felony). This bill also amends the Public
Health Law by creating a new section for a private right of action of
fertility fraud.

 
SUMMARY OF PROVISIONS:

SECTION 1 - CRIMINAL FERTILITY FRAUD. SECTION 130.65-A IS AMENDED TO
MAKE THE ACT OF USING HUMAN REPRODUCTIVE MATERIAL FROM A DONOR OTHER
THAN THAT SPECIFICALLY CONSENTED TO WHILE PERFORMING AN ASSISTED-REPRO-
DUCTION PROCEDURE ON A PATIENT THE CRIME OF AGGRAVATED SEXUAL ABUSE IN
THE FOURTH DEGREE. THE STANDARD OF PROOF IS WHERE THE HEALTH PRACTITION-
ER KNOWS OR REASONABLY SHOULD HAVE KNOWN THAT THE PATIENT HAD NOT
EXPRESSLY CONSENTED TO THE USE OF THE HUMAN REPRODUCTIVE MATERIAL FROM
SUCH DONOR SECTION 1 ALSO SETS FORTH DEFINITIONS. MAKES CLEAR THAT
CONDUCT PERFORMED FOR A VALID MEDICAL

SECTION 2 - STATUTE OF LIMITATIONS. THE CRIMINAL PROCEDURE LAW IS
AMENDED BY ADDING A NEW SECTION 30.10(3) (H) TO PROVIDE THE STATUTE OF
LIMITATIONS WHICH IS WITHIN THREE YEARS AFTER THE FACTS CONSTITUTING
SUCH OFFENCE ARE DISCOVERED BY AN AGGRIEVED PARTY THROUGH DNA ANALYSIS;
A RECORDING, DOCUMENTS OR OTHER INSTRUMENT PROVIDE EVIDENCE SUFFICIENT
TO BRING A PROSECUTION OR THE DEFENDANT CONFESSES TO THE OFFENCE WHICH-
EVER OCCURS LATER.

SECTION 3 - FERTILITY FRAUD CAUSE OF ACTION. THE PUBLIC HEALTH LAW IS
AMENDED BY ADDING A NEW SECTION 2500-M TO PROVIDE A PRIVATE RIGHT OF
ACTION OF FERTILITY FRAUD.

SECTION 4 - FERTILITY FRAUD AS PROFESSIONAL MISCONDUCT. SECTION 6530 OF
THE EDUCATION LAW IS AMENDED BY ADDING A NEW SECTION 51 SO THAT A
CONVICTION OF FERTILITY FRAUD OR IF ONE FOUND CIVILLY LIABLE FOR FERTIL-
ITY FRAUD IS GUILTY OF PROFESSIONAL MISCONDUCT AND SUBJECT TO THE PENAL-
TIES UNDER SECTION 230 OF THE PUBLIC HEALTH LAW.

SECTION 5- ESTABLISHES THE EFFECTIVE DATE.

 
JUSTIFICATION:

As the popularity of genetic testing kits such as 23&me and Ancestry
continues to rise, some individuals are making alarming discoveries.  In
some instances, genetic testing reveals that many women who conceived
children through an assisted reproduction procedure were unknowingly
inseminated by donors other than those they had chosen-sometimes by
their own fertility doctors.

For example, an Indiana-based fertility doctor inseminated his own sperm
into dozens of women, resulting in the births of at least 50 children.
Due to the outcry surrounding this case, Indiana passed a law to protect
its residents from fertility fraud. California and Texas have also
passed similar laws.

Most reproductive material donors are selected for specific genetic
traits and birth parents often pass down information on their chosen
donors to their children. In cases of fertility fraud, children
conceived via assisted reproduction procedure receive erroneous informa-
tion about their genetic background and health risks (e.g.  high-blood
pressure or breast cancer), potentially causing them to make unsafe
healthcare choices.

The twofold approach of this bill, establishing fertility fraud as a
crime of aggravated sexual abuse in the 4th degree, as well as a private
right of action, is necessary to ensure the accountability of the
assisted reproduction process, for recipients, offspring and donors
alike.

 
PRIOR LEGISLATIVE HISTORY:

2021-22: S.7569 Referred to Codes

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
Immediately.

2023-S80 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    80
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by Sens. GALLIVAN, BORRELLO -- read twice and ordered print-
   ed, 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:
 
   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.

                                                            LBD00574-01-3
 S. 80                               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-m
 to read as follows:
   § 2500-M. 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.
 S. 80                               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  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 SECTION 52-8.1 OF TITLE  X  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.
   3. (A) A DONOR OF HUMAN REPRODUCTIVE MATERIAL SHALL HAVE  A  CAUSE  OF
 ACTION  AGAINST  A  HEALTH  CARE  PRACTITIONER  WHO PERFORMS AN ASSISTED
 S. 80                               4
 
 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
 PART  52  OF  TITLE  X  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, INCLUD-
 ING BUT NOT LIMITED TO THOSE REGULATIONS ON REQUIRED  LABORATORY  TESTS,
 COLLECTION,  STORAGE  AND  DISPOSITION  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-M OF THE PUBLIC HEALTH LAW.
   § 5. This act shall take effect immediately.

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Senate Bill S80

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Sponsored By

Patrick M. Gallivan