Assembly Bill A1091A

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1091--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 7, 2021
                                ___________
 
 Introduced  by M. of A. PAULIN, DINOWITZ, FAHY, L. ROSENTHAL, ZEBROWSKI,
   SEAWRIGHT, NOLAN, MAGNARELLI,  GALEF,  SIMON,  ROZIC,  GRIFFIN,  OTIS,
   MONTESANO, SCHMITT, McDONOUGH -- read once and referred to the Commit-
   tee  on  Judiciary  --  committee  discharged,  bill  amended, ordered
   reprinted as amended and recommitted to said committee

 AN ACT to amend the civil rights law and the education law, in  relation
   to establishing a cause of action for fertility fraud
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The civil rights law is amended by  adding  a  new  section
 52-d to read as follows:
   §  52-D.  PRIVATE  RIGHT OF ACTION FOR FERTILITY FRAUD. 1. ANY PATIENT
 WHO HAS UNDERGONE AN ASSISTED REPRODUCTION PROCEDURE WITH A HEALTH  CARE
 PROVIDER,  THE  SPOUSE  OF  ANY  PATIENT  WHO  HAS UNDERGONE AN ASSISTED
 REPRODUCTION PROCEDURE WITH A HEALTH CARE PROVIDER, OR A CHILD OR PERSON
 BORN AS A RESULT OF SUCH ASSISTED REPRODUCTION PROCEDURE  SHALL  HAVE  A
 PRIVATE  RIGHT  OF  ACTION FOR DAMAGES AGAINST SUCH HEALTH CARE PROVIDER
 UNDER ANY OF THE FOLLOWING CONDITIONS:
   (A) SUCH HEALTH CARE PROVIDER KNOWINGLY OR INTENTIONALLY  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 TO TREATMENT USING HUMAN REPRODUCTIVE  MATERIAL
 FROM  THE HEALTH CARE PROVIDER OR FROM ANY DONOR OTHER THAN A DONOR FROM
 WHOM THE PATIENT CONSENTED TO 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.
   2.  ANY  PATIENT WHO HAS UNDERGONE AN ASSISTED REPRODUCTION PROCEDURE,
 THE SPOUSE OF ANY PATIENT WHO HAS  UNDERGONE  AN  ASSISTED  REPRODUCTION
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06232-10-1
              

 A. 1091--A                          2
 
 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 UNDER ANY OF
 THE FOLLOWING CONDITIONS:
   (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 THE GENETIC OR FAMILY HISTORY OF THE
 DONOR FOR THE PAST TWO GENERATIONS WHICH IS KNOWN TO THE  DONOR  AT  THE
 TIME OF DONATION; OR
   (B)  SUCH  ASSISTED  REPRODUCTIVE  SERVICE  PROVIDER KNOWINGLY USES OR
 PROVIDES HUMAN REPRODUCTIVE MATERIAL FOR AN ASSISTED REPRODUCTION PROCE-
 DURE IN A MANNER OR TO AN EXTENT OTHER THAN THAT TO  WHICH  THE  PATIENT
 CONSENTED.
   3. A DONOR OF HUMAN REPRODUCTIVE MATERIAL SHALL HAVE A CAUSE OF ACTION
 AGAINST  A HEALTH CARE PROVIDER OR ASSISTED REPRODUCTIVE SERVICE PROVID-
 ER, IF THE DONOR'S HUMAN REPRODUCTIVE MATERIAL WAS USED: (A) WITHOUT THE
 DONOR'S CONSENT; OR (B) IN A MANNER OR TO AN EXTENT OTHER THAN  THAT  TO
 WHICH THE DONOR CONSENTED.
   4.  DAMAGES  RECOVERED  BY  A PLAINTIFF PURSUANT TO THIS SECTION SHALL
 INCLUDE COMPENSATORY DAMAGES. IN ADDITION THERETO, 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.
   5. 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  REMEDY  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.
   6. 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.
   7. FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS  SHALL  HAVE  THE
 FOLLOWING MEANINGS:
   (A)  "DONOR"  SHALL  MEAN  AN  INDIVIDUAL  WHO DOES NOT INTEND TO BE A
 PARENT, WHO PRODUCES HUMAN REPRODUCTIVE MATERIAL AND PROVIDES SUCH HUMAN
 REPRODUCTIVE MATERIAL TO ANOTHER PERSON,  OTHER  THAN  THE  INDIVIDUAL'S
 SPOUSE, FOR USE IN AN ASSISTED REPRODUCTION PROCEDURE;
   (B) "HUMAN REPRODUCTIVE MATERIAL" SHALL MEAN:
   (I) A HUMAN SPERMATOZOON OR OVUM; OR
   (II) A HUMAN ORGANISM AT ANY STAGE OF DEVELOPMENT FROM FERTILIZED OVUM
 TO EMBRYO; AND
   (C)  "PATIENT"  SHALL  MEAN  ANY INDIVIDUAL INJECTED OR IMPLANTED WITH
 HUMAN REPRODUCTIVE MATERIAL.
   § 2. Section 6530 of the education law is  amended  by  adding  a  new
 subdivision 51 to read as follows:
   51.  FOUND LIABLE FOR FERTILITY FRAUD UNDER SECTION FIFTY-TWO-D OF THE
 CIVIL RIGHTS LAW.
   § 3. This act shall take effect on the ninetieth day  after  it  shall
 have  become  a  law, and shall apply to acts occurring on or after such
 date.