Assembly Bill A8562

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8562
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                            September 13, 2019
                                ___________
 
 Introduced by M. of A. JACOBSON -- read once and referred to the Commit-
   tee on Codes
 
 AN ACT to amend the penal law, in relation to aggravated sexual abuse in
   the  fourth degree; and to amend the public health law, in relation to
   creating a private right 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. 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 A DONOR KNOWING  OR  REASONABLY  SHOULD  HAVE
 KNOWN  THAT SUCH PATIENT HAD NOT EXPRESSLY CONSENTED TO THE USE OF HUMAN
 REPRODUCTIVE MATERIAL FROM SUCH 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13688-03-9
              

 A. 8562                             2
 
   (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. 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.
   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 A HEALTH CARE  PRACTITIONER
 WHO KNOWINGLY OR INTENTIONALLY PERFORMED AN ASSISTED REPRODUCTION PROCE-
 DURE ON SUCH PATIENT USING:
   (I)  SUCH  HEALTH CARE PRACTITIONER'S OWN HUMAN REPRODUCTIVE MATERIAL;
 OR
   (II) THE HUMAN REPRODUCTIVE MATERIAL OF ANY DONOR WITHOUT THE INFORMED
 WRITTEN CONSENT OF SUCH PATIENT TO  TREATMENT  USING  SUCH  REPRODUCTIVE
 MATERIAL.
   (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
 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; OR
   (II) IN A MANNER OR TO AN  EXTENT  OTHER  THAN  TO  WHICH  SUCH  DONOR
 CONSENTED.

 A. 8562                             3
 
   (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.
   § 3. This act shall take effect immediately.