Senate Bill S2589

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2589
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 28, 2019
                                ___________
 
 Introduced  by Sens. KRUEGER, HOYLMAN -- read twice and ordered printed,
   and when printed to be committed to the Committee on Judiciary
 
 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.
   § 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
 IN THAT PARTY'S MEDICAL RECORDS. ON THE THIRTIETH DAY AFTER THE DATE  ON
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07876-01-9

 S. 2589                             2
 
 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 KNOWN 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.
   § 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-
 ER. NOTHING CONTAINED IN THIS SECTION SHALL AFFECT THE OBLIGATION  OF  A

 S. 2589                             3
 
 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.
   § 2. This act shall take effect on the two hundred eightieth day after
 it shall have become a law.  Effective immediately the addition,  amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such date.