Florida Senate - 2020 SB 698 By Senator Book 32-00305A-20 2020698__ 1 A bill to be entitled 2 An act relating to assisted reproduction facilities; 3 creating s. 383.61, F.S.; defining terms; requiring a 4 donor to enter into a certain contract with a donor 5 bank or fertility clinic before he or she may donate; 6 providing requirements for the contract; requiring a 7 donor bank to clearly label each donation that is 8 transferred to a fertility clinic according to the 9 terms of each donor’s contract; requiring a fertility 10 clinic to ensure that each donation received from a 11 donor or a donor bank is implanted, returned, or 12 disposed of according to the terms of the applicable 13 donor’s contract; requiring donor banks and fertility 14 clinics to develop, by a specified date, a written 15 best practices policy for storing and segregating 16 sperm, eggs, and embryos; requiring the annual 17 submission of such written policies to the department 18 for review; creating a presumption of recklessness 19 against a physician at a fertility clinic that does 20 not have such a written policy; requiring the 21 Department of Health to perform annual inspections of 22 donor banks and fertility clinics without notice; 23 requiring the department to impose specified fines on 24 donor banks and fertility clinics for certain 25 violations and specified conduct; requiring such fines 26 to be deposited into the Rape Crisis Program Trust 27 Fund; providing civil and criminal causes of action 28 for, criminal penalties for, and disciplinary action 29 against a physician who intentionally or recklessly 30 artificially inseminates a patient with the incorrect 31 sperm, eggs, or embryos; tolling applicable time 32 limitations for civil actions, criminal prosecution, 33 and disciplinary proceedings relating to certain 34 violations until certain conditions are met; providing 35 an effective date. 36 37 Be It Enacted by the Legislature of the State of Florida: 38 39 Section 1. Section 383.61, Florida Statutes, is created to 40 read: 41 383.61 Assisted reproduction facilities.— 42 (1) DEFINITIONS.—As used in this section, the term: 43 (a) “Assisted reproductive technology” means all treatments 44 or procedures that include the handling of human eggs, sperm, or 45 embryos, including in vitro fertilization, gamete intrafallopian 46 transfer, zygote intrafallopian transfer, and any other specific 47 technology the department deems appropriate by rule. 48 (b) “Department” means the Department of Health. 49 (c) “Donation” means the giving of human sperm, eggs, or 50 embryos to a donor bank or fertility clinic for use in assisted 51 reproduction, regardless of whether for personal use or 52 compensation. 53 (d) “Donor” means a person who gives a donation. 54 (e) “Donor bank” means a facility that collects donations 55 from donors for use by a fertility clinic. 56 (f) “Fertility clinic” means a facility in which human eggs 57 are subject to assisted reproductive technology based on 58 manipulation of eggs or embryos that are subject to 59 implantation. 60 (g) “Incorrect insemination” means the implantation of 61 sperm, eggs, or embryos into a patient which is contrary to the 62 terms of the donor’s contract. 63 (2) DONOR CONTRACTS.— 64 (a) A donor must enter into a contract with a donor bank or 65 fertility clinic before he or she may donate to that donor bank 66 or fertility clinic. The contract must, at a minimum, indicate 67 what must be done with the specimen if: 68 1. The donor dies or becomes incapacitated; 69 2. A designated recipient for the donation dies or becomes 70 incapacitated; 71 3. The donor and recipient separate or their marriage is 72 dissolved; and 73 4. The specimen is unused, including whether it may be 74 disposed of, offered to a different recipient, or donated to 75 science. 76 (b) A donor bank must ensure that each donation transferred 77 to a fertility clinic is clearly labeled according to the terms 78 of each donor’s contract. 79 (c) A fertility clinic must ensure that each donation 80 received from a donor or a donor bank is implanted, returned, or 81 disposed of according to the terms of the applicable donor’s 82 contract. 83 (3) BEST PRACTICES POLICIES.— 84 (a) By January 1, 2021, each donor bank and fertility 85 clinic in this state shall develop a written best practices 86 policy for storing and segregating sperm, eggs, and embryos to 87 ensure that the correct specimens are implanted in the correct 88 individuals and otherwise handled as directed by each donor’s 89 contract with the donor bank or fertility clinic. 90 (b) The best practices policy must be submitted to the 91 department annually for review. 92 (c) Evidence that a fertility clinic does not have a 93 written best practices policy in place creates a presumption of 94 physician recklessness in a cause of action brought under this 95 section. 96 (4) INSPECTIONS.—The department shall perform annual 97 inspections of donor banks and fertility clinics without notice. 98 (5) FINES.— 99 (a) The department shall impose a fine of $5,000 on a donor 100 bank for each failure to clearly label a donation or otherwise 101 comply with the terms of a donor’s contract or this section. 102 (b) The department shall impose a fine of up to $20,000 on 103 a fertility clinic that fails to comply with the terms of a 104 donor’s contract or this section. 105 (c) The department shall impose an administrative fine of 106 up to $20,000 on a donor bank or a fertility clinic for each 107 violation of 42 U.S.C. part 263. 108 (d) Fines collected under this section shall be deposited 109 into the Rape Crisis Program Trust Fund established within the 110 department under s. 794.056. 111 (6) CAUSES OF ACTION.—A physician who intentionally or 112 recklessly implants the incorrect sperm, eggs, or embryos into a 113 patient: 114 (a) Is liable to that patient or a child born from such 115 assisted reproduction for all damages reasonably necessary to 116 compensate the patient or the child for any injuries suffered as 117 a result of the physician’s intentional or reckless incorrect 118 insemination, including, but not limited to, emotional or mental 119 distress. 120 (b) Commits a felony of the third degree, punishable as 121 provided in s. 775.082, s. 775.083, or s. 775.084. 122 (c) Commits a sexual battery under s. 794.011, if the 123 incorrect insemination is of the physician’s own biological 124 specimen. 125 (d) Is subject to disciplinary action under s. 126 456.072(1)(k), s. 458.331(1), or s. 459.015(1). 127 (7) TOLLING TIME LIMITATIONS.— 128 (a) The time limitations with respect to any civil action 129 that may be brought by, or on behalf of, a patient or a child 130 allegedly injured as a result of an incorrect insemination do 131 not begin to run until the patient discovers the violation. 132 (b) The applicable time limitations in s. 775.15 to 133 commence prosecution for a violation of subsection (6) do not 134 begin to run until the patient discovers the violation and 135 reports it to a law enforcement agency or other governmental 136 agency. Such law enforcement agency or other governmental agency 137 shall promptly report such allegation to the state attorney for 138 the judicial circuit in which the alleged violation occurred. 139 (c) The applicable time limitations in s. 456.073(13) to 140 file an administrative complaint against a licensee for a 141 violation of subsection (6) do not begin to run until the 142 patient discovers the violation and reports it to the department 143 or a law enforcement agency. Such law enforcement agency shall 144 promptly report such allegation to the department. 145 Section 2. This act shall take effect July 1, 2020.