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         383.61Assisted 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.