S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2845--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 27, 2023
                                ___________
 
 Introduced  by M. of A. PAULIN, DINOWITZ, FAHY, L. ROSENTHAL, ZEBROWSKI,
   SEAWRIGHT, MAGNARELLI, SIMON, ROZIC, OTIS, McDONOUGH -- read once  and
   referred  to  the Committee on Judiciary -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee

 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.  Article  5 of the civil rights law is amended by adding a
 new section 52-e to read as follows:
   § 52-E. PRIVATE RIGHT OF ACTION FOR FERTILITY FRAUD.  1.  ANY  PATIENT
 WHO  HAS UNDERGONE AN ASSISTED REPRODUCTION PROCEDURE WITH A HEALTH CARE
 PROVIDER, ANY INTENDED PARENT, THE SPOUSE OF ANY PATIENT WHO HAS  UNDER-
 GONE AN ASSISTED REPRODUCTION PROCEDURE WITH A HEALTH CARE PROVIDER, THE
 SPOUSE  OF ANY INTENDED PARENT, 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07114-05-3
 A. 2845--A                          2
              

 
   2.  ANY  PATIENT WHO HAS UNDERGONE AN ASSISTED REPRODUCTION PROCEDURE,
 ANY INTENDED PARENT, THE SPOUSE OF ANY  PATIENT  WHO  HAS  UNDERGONE  AN
 ASSISTED REPRODUCTION PROCEDURE, THE SPOUSE OF ANY INTENDED PARENT, 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 CONDI-
 TIONS:
   (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, INCLUDING PLAINTIFF'S EMOTIONAL DISTRESS
 ARISING  FROM DEFENDANT'S CONDUCT.  IN ADDITION THERETO,  THE  TRIER  OF
 FACT  MAY  AWARD  PUNITIVE DAMAGES AND SUCH OTHER NON-MONETARY RELIEF AS
 MAY BE APPROPRIATE.
   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;
   (C)  "PATIENT"  SHALL  MEAN  ANY INDIVIDUAL INJECTED OR IMPLANTED WITH
 HUMAN REPRODUCTIVE MATERIAL; AND
   (D) "INTENDED PARENT" SHALL HAVE THE SAME MEANING  AS  IN  SUBDIVISION
 (L) OF SECTION 581-102 OF THE FAMILY COURT ACT.
   §  2.  Section  6530  of  the education law is amended by adding a new
 subdivision 51 to read as follows:
   51. (A) KNOWINGLY OR INTENTIONALLY PERFORMING AN ASSISTED REPRODUCTION
 PROCEDURE USING THE HUMAN REPRODUCTIVE MATERIAL OF THE LICENSEE  OR  ANY
 OTHER  DONOR WITHOUT THE PATIENT'S INFORMED WRITTEN CONSENT TO TREATMENT
 USING HUMAN REPRODUCTIVE MATERIAL FROM THE LICENSEE OR  FROM  ANY  DONOR
 OTHER THAN A DONOR FROM WHOM THE PATIENT CONSENTED TO IN WRITING; OR
 A. 2845--A                          3
 
   (B)  INTENTIONALLY  PERFORMING  AN ASSISTED REPRODUCTION PROCEDURE AND
 SUCH LICENSEE 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.
   § 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.