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.