BILL NUMBER: S5942

SPONSOR: BIAGGI
 
TITLE OF BILL:

An act to amend the civil rights law, in relation to establishing a
cause of action for fertility fraud

 
PURPOSE:

To provide civil recourse to patients and their spouses when a physician
performing an assisted reproduction procedure commits fertility fraud

 
SUMMARY OF PROVISIONS:

Section one adds a new section 52-c to the civil rights law, creating a
private right of action for fertility fraud.

Subdivision one provides that any patient who has undergone an assisted
reproduction procedure with a health care provider or the spouse of any
patient who has undergone an assisted reproduction procedure with a
              

health care provider shall have a private right of action for damages
against such health care provider when: (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, or from any
donor other than a donor from whom the patient consented in writing; or
(b) such health care provider intentionally performs an assisted reprod-
uction 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.

Subdivision two provides that 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 consid-
er the emotional impact of the defendant's conduct.

Subdivision three provides that 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 reme-
dy 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.

Subdivision four defines terms used in this section. Section two
provides the effective date.

 
JUSTIFICATION:

Several recent high profile cases of doctors using their own sperm to
inseminate patients have brought attention to the issue of fertility
fraud. One Indiana doctor used his sperm instead of the intended donor
sperm and has been found to have fathered at least sixty children, born
in the 1970s and 1980s. Vocal patients who were victims of a doctor's
fraud in Texas exposed his actions and were successful in advocating for
the passage of fertility fraud legislation in their state. Currently,
Indiana, California, and Texas have enacted laws creating a civil right
of action for fertility fraud. Civil bills have also been introduced and
are pending in Colorado, Nebraska, Ohio and Florida.

New York law must protect the dignity of women undergoing assisted
reproduction procedures. If a doctor violates their professional oath
and takes advantage of a patient's confidence by using reproductive
material without prior consent, there must be judicial recourse avail-
able to victims. Learning that one has received unintended reproductive
material without consent is the ultimate betrayal of trust and would
leave a patient feeling nothing less than deceit and violation.

This legislation creates a civil right of action against a health care
provider when such provider knowingly or intentionally performs an
assisted reproductive procedure using their own human reproductive mate-
rial, or that of any other donor, without the patient's informed written
consent. Patients must feel confident that the reproductive material
used to have their child is the material that they have consented to
using. Establishing a right to sue for the act of fertility fraud will
validate a victim's experience and will make it easier to seek justice
when they have been wronged in this manner by their provider.

 
PRIOR LEGISLATIVE HISTORY:

2019-20: A.11141, referred to judiciary

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
On the ninetieth day after it shall have become law