Senate Bill S4360

                                 
BILL NUMBER: S4360

SPONSOR: FERNANDEZ
 
TITLE OF BILL:

An act to amend the penal law, in relation to establishing fertility
fraud as a class E felony offense

 
PURPOSE OR GENERAL IDEA OF BILL:

This legislation will create the new crime of fertility fraud to protect
patients from the use of non-consensual reproductive material.

 
SUMMARY OF PROVISIONS:

Section 1 amends the Penal Law by adding section 190.90 which estab-
lishes the crime of fertility fraud as knowingly or intentionally
performing an assisted reproductive procedure using:

a. The health care providers own human reproductive material

b. Using a donor's human reproductive material that without the
              

patient's consent

c. Using human reproductive material without the donor's consent.

Fertility fraud is a class E felony.

Section 2 sets forth the effective date.

 
JUSTIFICATION:

In one high profile case, a fertility doctor used his own sperm while
claiming it was from an anonymous donor in fertility treatments. His DNA
has since been tied to over 50 children. Patients and children conceived
in his clinic were shocked to learn that the doctor's actions were not
illegal. However, only three states currently have laws criminalizing
fertility fraud. New York should join that list to protect patients
receiving fertility treatments from the use of reproductive material
they did not consent to.

Patients receiving the incorrect human reproductive material often feel
violated and deceived. Unfortunately, our courts have not held that
receiving the wrong sperm is fraud unless the child is unhealthy. The
Food and Drug Administration only oversees this industry to ensure that
the reproductive material does not have communicable diseases and meets
general eligibility requirements for donation. The FDA does not have any
guidelines relating to the donor selection process. The lack of regu-
lation in this industry has made it difficult to seek justice for a
patient who receives non-consensual human reproductive material.

Health care facilities should be held to the highest standard - ensuring
that any human reproductive material was the material in which the
patient consented to, without fear of a mix-up or intentional fraud.
This bill would create the crime of fertility fraud, a class E felony
punishable by up to 4 years in jail and up to a $5,000 fine.

 
PRIOR LEGISLATIVE HISTORY:

2021-2022: S4841 / A387

2019-2020: S6720 / A10672

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This act shall take effect on the one hundred twentieth day after it
shall have become a law.