S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2761

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 21, 2009
                               ___________

Introduced by M. of A. SWEENEY, COOK, FIELDS -- Multi-Sponsored by -- M.
  of A. WEISENBERG -- read once and referred to the Committee on Judici-
  ary

AN  ACT  to  amend  the  domestic relations law, in relation to advanced
  written consent and directives for the transfer, use, and  disposition
  of  gametes  or  embryos  cryopreserved  in the course of a program of
  assisted reproductive technology

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The domestic relations law is amended by adding a new arti-
cle 8-A to read as follows:
                               ARTICLE 8-A
                    CRYOPRESERVED EMBRYOS OR GAMETES

SECTION 130. DEFINITIONS.
        131.  ADVANCE  WRITTEN  CONSENT AND DIRECTIVES FOR THE TRANSFER,
                USE,  AND  DISPOSITION  OF  CRYOPRESERVED   EMBRYOS   OR
                GAMETES.
  S  130.  DEFINITIONS. WHEN USED IN THIS ARTICLE, UNLESS THE CONTEXT OR
SUBJECT MATTER CLEARLY REQUIRES A DIFFERENT MEANING:
  1. "ABANDON BY REQUEST" SHALL MEAN  THAT  A  PARTY  INTENDS  TO  CEASE
PARTICIPATION  IN  AN ASSISTED REPRODUCTIVE TECHNOLOGY PROGRAM AND NOTI-
FIES A PROVIDER OF ASSISTED REPRODUCTIVE SERVICES OF SUCH  INTENT  IN  A
WRITTEN,  SIGNED,  AND NOTARIZED LETTER OF INTENT TO ABANDON BY REQUEST.
WITHIN THIRTY DAYS OF RECEIPT OF A PARTY'S LETTER OF INTENT  TO  ABANDON
BY  REQUEST,  THE PROVIDER SHALL SEND, BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO ANY OTHER PARTY WHOSE  PARTICIPATION  IN  SUCH  PROVIDER'S
ASSISTED REPRODUCTIVE SERVICES MAY BE AFFECTED BY THE REQUESTING PARTY'S
ABANDONMENT  BY  REQUEST, A WRITTEN NOTICE THAT THE TERMS OF AN EXECUTED
ADVANCE DIRECTIVE FOR DISPOSITION WILL BE IMPLEMENTED. IF ANY  PARTY  IS
ALSO A PATIENT, A COPY OF SUCH NOTICE AND PROOF OF MAILING SHALL BE KEPT

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02711-01-9
              

A. 2761                             2

IN  THAT PARTY'S MEDICAL RECORDS. ON THE THIRTIETH DAY AFTER THE DATE ON
THE LETTER OF NOTIFICATION, OR, IF THERE ARE NO OTHER AFFECTED  PARTIES,
ON  THE  THIRTIETH  DAY  AFTER  THE  PROVIDER'S RECEIPT OF THE LETTER OF
INTENT  TO ABANDON BY REQUEST, THE PROVIDER SHALL IMPLEMENT THE APPLICA-
BLE TERMS OF THE  REQUESTING  PARTY'S  EXECUTED  ADVANCE  DIRECTIVE  FOR
DISPOSITION.
  2. "ASSISTED REPRODUCTIVE TECHNOLOGY" SHALL INCLUDE, BUT NOT BE LIMIT-
ED  TO,  THE  FOLLOWING  METHODS OF ASSISTING IN FERTILIZATION: IN VITRO
FERTILIZATION-EMBRYO TRANSFER, GAMETE INTRAFALLOPIAN TRANSFER, AND CRYO-
PRESERVATION.
  3. "CRYOPRESERVATION" SHALL MEAN THE STORAGE  OF  GAMETES  OR  EMBRYOS
PRODUCED  BY  MEANS OF AN ASSISTED REPRODUCTIVE TECHNOLOGY PROCEDURE AND
PRESERVED BY MEANS OF LOW-TEMPERATURE FREEZING  IN  LIQUID  NITROGEN  OR
OTHER SIMILAR MEDIUM.
  4. "EMBRYO" SHALL MEAN A FERTILIZED HUMAN OVUM.
  5.  "FAILURE TO PAY STORAGE FEES" SHALL MEAN THAT A PROVIDER TO WHOM A
PARTY PAYS A STORAGE FEE HAS NOT RECEIVED A  FEE  FROM  SUCH  PARTY  FOR
THREE  CONSECUTIVE  YEARS.  AFTER THREE CONSECUTIVE YEARS OF NONPAYMENT,
THE PROVIDER SHALL NOTIFY IN WRITING BY CERTIFIED MAIL,  RETURN  RECEIPT
REQUESTED, SENT TO THE LAST KNOW ADDRESS OF THE NON-PAYING PARTY, AND TO
THE  LAST  KNOWN  ADDRESS  OF ANY OTHER PARTY WHOSE PARTICIPATION MAY BE
AFFECTED BY THE NON-PAYING PARTY'S FAILURE TO PAY STORAGE FEES, A  WRIT-
TEN  NOTICE  THAT, UNLESS THE PROVIDER IS CONTACTED AND INSTRUCTED TO DO
OTHERWISE, THE TERMS OF AN EXECUTED ADVANCED DIRECTIVE  FOR  DISPOSITION
IN  THE  EVENT  OF  FAILURE TO PAY STORAGE FEES WILL BE IMPLEMENTED. SIX
MONTHS FROM THE DATE OF THE FIRST NOTICE, A SECOND SUCH NOTICE SHALL  BE
MAILED  IN  THE SAME MANNER AS THE FIRST NOTICE. IF THE NON-PAYING PARTY
OR AN AFFECTED PARTY IS ALSO A PATIENT, A COPY OF SUCH NOTICE OR NOTICES
AND PROOFS OF MAILING SHALL BE KEPT IN THAT PARTY'S MEDICAL RECORDS.  IF
THE  PROVIDER  RECEIVES  NO  INSTRUCTION  TO DO OTHERWISE IN RESPONSE TO
EITHER THE FIRST OR SECOND NOTIFICATION, ON THE THIRTIETH DAY AFTER  THE
DATE  OF THE SECOND LETTER OF NOTIFICATION, THE PROVIDER SHALL IMPLEMENT
THE TERMS OF THE  NON-PAYING  PARTY'S  EXECUTED  ADVANCE  DIRECTIVE  FOR
DISPOSITION IN THE EVENT OF FAILURE TO PAY STORAGE FEES.
  6. "GAMETES" SHALL MEAN HUMAN SPERM OR OVA.
  7.  "PATIENT"  SHALL MEAN A PERSON WHO DONATES OR RECEIVES A GAMETE OR
EMBRYO.
  8. "PARTY" SHALL MEAN A NATURAL PERSON WHO EXECUTES, ACCORDING TO  THE
PROVISIONS  OF SECTION ONE HUNDRED THIRTY-ONE OF THIS ARTICLE, A PROVID-
ER'S ADVANCE WRITTEN CONSENT AND DIRECTIVES FOR THE TRANSFER,  USE,  AND
DISPOSITION  OF  CRYOPRESERVED EMBRYOS OR GAMETES FOR ASSISTED REPRODUC-
TIVE SERVICES.
  9. "PROVIDER" SHALL MEAN AN INDIVIDUAL,  CORPORATION,  OTHER  BUSINESS
ENTITY,  OR NON-PROFIT ENTITY ENGAGED IN PROVIDING ASSISTED REPRODUCTIVE
TECHNOLOGY SERVICES.
  S 131. ADVANCE WRITTEN CONSENT AND DIRECTIVES FOR THE  TRANSFER,  USE,
AND  DISPOSITION  OF  CRYOPRESERVED  EMBRYOS OR GAMETES. 1. ANY PROVIDER
LOCATED IN NEW YORK STATE WHOSE SERVICES INCLUDE THE CRYOPRESERVATION OF
GAMETES OR EMBRYOS,  AND  BEFORE  PROVIDING  ANY  SUCH  SERVICES,  SHALL
REQUIRE  THE PRIOR EXECUTION, PURSUANT TO THIS SECTION, OF ADVANCE WRIT-
TEN CONSENT AND DIRECTIVES AS TO THE TRANSFER, USE, AND  DISPOSITION  OF
SUCH  GAMETES  OR  EMBRYOS. PRIOR TO RECEIVING ANY ASSISTED REPRODUCTIVE
TECHNOLOGY SERVICE, ON A FORM OR FORMS PRESCRIBED BY THE COMMISSIONER OF
HEALTH, SUCH CONSENT AND DIRECTIVES SHALL BE SIGNED AND  DATED,  IN  THE
PRESENCE  OF EACH OTHER, BY THE PARTY REQUESTING SERVICES, A WITNESS FOR
THE REQUESTING PARTY, AND A LICENSED PHYSICIAN AUTHORIZED BY THE PROVID-

A. 2761                             3

ER. NOTHING CONTAINED IN THIS SECTION SHALL AFFECT THE OBLIGATION  OF  A
PHYSICIAN OR SURGEON UNDER CURRENT LAW TO OBTAIN THE INFORMED CONSENT OF
A PARTY WHO MAY ALSO BE A PATIENT PRIOR TO SUCH PHYSICIAN'S OR SURGEON'S
PERFORMING  ANY MEDICAL OR SURGICAL PROCEDURE FOR WHICH INFORMED CONSENT
IS OTHERWISE REQUIRED.
  2. (A) THE FORM FOR ADVANCE WRITTEN CONSENT TO  ASSISTED  REPRODUCTIVE
SERVICES  EXECUTED  BY  A PARTY WHO IS ALSO A PATIENT SHALL INCLUDE, BUT
NOT BE LIMITED TO, THE FOLLOWING INFORMATION: (I)  THE  PATIENT'S  NAME;
(II)  THE PATIENT'S ADDRESS, TELEPHONE NUMBER, OR OTHER RELEVANT CONTACT
INFORMATION; (III) THE TYPE AND QUANTITY, IF APPLICABLE, OF SPERM,  OVA,
OR  EMBRYOS  DONATED  OR  RECEIVED;  AND (IV) THE NAME OF THE CLINIC, OR
OTHER DONEE FOR A SPECIFIED PURPOSE,  WHICH  PURPOSE  SHALL  BE  CLEARLY
STATED.
  (B)  THE  FORM  FOR  ADVANCE  WRITTEN CONSENT TO ASSISTED REPRODUCTIVE
SERVICES EXECUTED BY A PARTY WHO IS ALSO A PATIENT SHALL BE  SIGNED  AND
DATED BY THE PATIENT, THE ATTENDING PHYSICIAN OR SURGEON, A PROVIDER-AU-
THORIZED  CLINICIAN  WHO SHALL VERIFY THE TYPE AND QUANTITY, IF APPLICA-
BLE, OF SPERM, OVA, OR EMBRYOS DONATED OR RECEIVED, AND ANY OTHER SIGNA-
TORIES REQUIRED  BY  SUBDIVISION  ONE  OF  THIS  SECTION.  THE  ORIGINAL
EXECUTED  CONSENT  FORM  SHALL  BE  RETAINED  IN THE PROVIDER'S BUSINESS
RECORDS, THE MEDICAL RECORDS OF THE PARTY WHO IS ALSO A PATIENT,  AND  A
COPY SHALL BE PROVIDED TO THE PARTY.
  3.  (A)  THE  FORM  PRESCRIBING  DIRECTIVES  AS  TO THE DISPOSITION OF
CRYOPRESERVED GAMETES OR EMBRYOS SHALL INCLUDE, BUT NOT BE  LIMITED  TO,
CHOICES  FOR DISPOSITION UNDER THE FOLLOWING CIRCUMSTANCES: (I) DEATH OF
A PARTY; (II) THE PARTY'S SEPARATION OR DIVORCE; (III) THE PARTY'S DECI-
SION TO ABANDON BY REQUEST CRYOPRESERVED GAMETES OR EMBRYOS; OR (IV) THE
PARTY'S ABANDONMENT OF CRYOPRESERVED GAMETES OR EMBRYOS  BY  FAILURE  TO
PAY STORAGE FEES.
  (B)  THE FORM PRESCRIBING DIRECTIVES AS TO THE DISPOSITION OF CRYOPRE-
SERVED GAMETES OR EMBRYOS SHALL INCLUDE, BUT NOT BE LIMITED TO,  CHOICES
AND DIRECTION FOR THE FOLLOWING DISPOSITION OPTIONS: (I) MADE AVAILABLE,
TRANSFERRED,  OR  DONATED  TO  ANOTHER  PARTY; (II) DONATED FOR RESEARCH
PURPOSES; (III) THAWED WITH NO  FURTHER  ACTION  TAKEN;  OR  (IV)  OTHER
DISPOSITION, PROVIDED THAT SUCH DISPOSITION SHALL BE CLEARLY STATED.
  (C)  THE FORM PRESCRIBING DIRECTIVES AS TO THE DISPOSITION OF CRYOPRE-
SERVED GAMETES OR EMBRYOS SHALL CLEARLY STATE THE PROVIDER'S TIME  LIMIT
ON STORAGE OF SUCH GAMETES OR EMBRYOS; SUCH TIME LIMIT SHALL NOT BE LESS
THAN THREE YEARS.
  (D) A PARTY WHO CHOOSES THE OPTION TO DONATE TO ANOTHER PARTY PURSUANT
TO SUBPARAGRAPH (I) OF PARAGRAPH (B) OF THIS SUBDIVISION SHALL MEET SUCH
DONOR  QUALIFICATIONS  AS  MAY  BE  REQUIRED IN APPLICABLE LAW AND REGU-
LATIONS.
  (E) A PARTY MAY MODIFY DIRECTIVES  FOR  DISPOSITION  OF  CRYOPRESERVED
GAMETES  AND  EMBRYOS  AT  A LATER DATE; PROVIDED THAT SUCH MODIFICATION
SHALL BE EXECUTED IN THE SAME MANNER  AS  IS  REQUIRED  FOR  AN  INITIAL
CONSENT AND DIRECTIVE PURSUANT TO SUBDIVISION ONE OF THIS SECTION.
  S 2. This act shall take effect on the two hundred eightieth day after
it  shall  have  become  a law; provided, however, that, effective imme-
diately, the commissioner of health is authorized to promulgate any  and
all  rules  and  regulations  and  take  any other measures necessary to
implement this act on its effective date on or before such date.