Bill Text: FL S7062 | 2010 | Regular Session | Introduced
Bill Title: Assisted Reproductive Technology
Spectrum: Unknown
Status: (N/A - Dead) 2010-02-18 - Submit as committee bill by Judiciary (SB 2240) [S7062 Detail]
Download: Florida-2010-S7062-Introduced.html
Florida Senate - 2010 (PROPOSED COMMITTEE BILL) SPB 7062 FOR CONSIDERATION By the Committee on Judiciary 590-01086B-10 20107062__ 1 A bill to be entitled 2 An act relating to assisted reproductive technology; 3 creating s. 742.125, F.S.; creating the “Florida 4 Assisted Reproductive Technology Act”; amending s. 5 742.13, F.S.; conforming a cross-reference to changes 6 made by the act; amending s. 742.14, F.S.; correcting 7 a cross-reference; creating s. 742.175, F.S.; 8 providing definitions; providing general requirements 9 that an assisted reproductive technology agency must 10 follow; requiring an assisted reproductive technology 11 agency to establish an escrow account for certain 12 funds; requiring an assisted reproductive technology 13 agency to obtain express and informed consent from 14 participants; prescribing requirements for contracts 15 for third-party reproductive services; prescribing 16 requirements for advertising by an assisted 17 reproductive technology agency; prohibiting an 18 assisted reproductive technology agency from engaging 19 in third-party reproductive services if the owner or 20 operator of the agency has had any arrests, charges, 21 or convictions related to certain crimes; prohibiting 22 an assisted reproductive technology agency from using 23 the services of persons who are not United States 24 citizens or permanent residents; providing penalties 25 and remedies; providing for recovery of attorney’s 26 fees under certain circumstances; providing an 27 effective date. 28 29 Be It Enacted by the Legislature of the State of Florida: 30 31 Section 1. Section 742.125, Florida Statutes, is created to 32 read: 33 742.125 Short title.—Sections 742.125-742.175 may be cited 34 as the “Florida Assisted Reproductive Technology Act.” 35 Section 2. Section 742.13, Florida Statutes, is amended to 36 read: 37 742.13 Definitions.—As used in ss. 742.125-742.175742.1138742.17, the term: 39 (1) “Assisted reproductive technology” means those 40 procreative procedures which involve the laboratory handling of 41 human eggs or preembryos, including, but not limited to, in 42 vitro fertilization embryo transfer, gamete intrafallopian 43 transfer, pronuclear stage transfer, tubal embryo transfer, and 44 zygote intrafallopian transfer. 45 (2) “Commissioning couple” means the intended mother and 46 father of a child who will be conceived by means of assisted 47 reproductive technology using the eggs or sperm of at least one 48 of the intended parents. 49 (3) “Egg” means the unfertilized female reproductive cell. 50 (4) “Fertilization” means the initial union of an egg and 51 sperm. 52 (5) “Gestational surrogate” means a woman who contracts to 53 become pregnant by means of assisted reproductive technology 54 without the use of an egg from her body. 55 (6) “Gestational surrogacy” means a state that results from 56 a process in which a commissioning couple’s eggs or sperm, or 57 both, are mixed in vitro and the resulting preembryo is 58 implanted within another woman’s body. 59 (7) “Gestational surrogacy contract” means a written 60 agreement between the gestational surrogate and the 61 commissioning couple. 62 (8) “Gamete intrafallopian transfer” means the direct 63 transfer of eggs and sperm into the fallopian tube prior to 64 fertilization. 65 (9) “Implantation” means the event that occurs when a 66 fertilized egg adheres to the uterine wall for nourishment. 67 (10) “In vitro” refers to a laboratory procedure performed 68 in an artificial environment outside a woman’s body. 69 (11) “In vitro fertilization embryo transfer” means the 70 transfer of an in vitro fertilized preembryo into a woman’s 71 uterus. 72 (12) “Preembryo” means the product of fertilization of an 73 egg by a sperm until the appearance of the embryonic axis. 74 (13) “Pronuclear stage transfer” or “zygote intrafallopian 75 transfer” means the transfer of an in vitro fertilized preembryo 76 into the fallopian tube before cell division takes place. 77 (14) “Sperm” means the male reproductive cell. 78 (15) “Tubal embryo transfer” means the transfer of a 79 dividing, in vitro fertilized preembryo into the fallopian tube. 80 Section 3. Section 742.14, Florida Statutes, is amended to 81 read: 82 742.14 Donation of eggs, sperm, or preembryos.—The donor of 83 any egg, sperm, or preembryo, other than the commissioning 84 couple or a father who has executed a preplanned adoption 85 agreement under s. 63.21363.212, shall relinquish all maternal 86 or paternal rights and obligations with respect to the donation 87 or the resulting children. Only reasonable compensation directly 88 related to the donation of eggs, sperm, and preembryos shall be 89 permitted. 90 Section 4. Section 742.175, Florida Statutes, is created to 91 read: 92 742.175 Assisted reproductive technology agencies; 93 requirements; prohibited acts; penalties; remedies.— 94 (1) DEFINITIONS.—For purposes of this section, the term: 95 (a) “Assisted reproductive technology agency” or “agency” 96 means any organization or individual who provides database, 97 matching, and other third-party reproductive services on a 98 commercial or fee basis. 99 (b) “Donor” means an individual who produces eggs or sperm 100 used for assisted reproduction, whether or not for 101 consideration. The term does not include an intended mother or 102 intended father who provides gametes to be used for assisted 103 reproduction. 104 (c) “Participant” means an individual who provides a 105 biological or genetic component of assisted reproduction, a 106 commissioning couple, and, if appropriate, the spouse of a 107 gestational surrogate. Gestation is a biological component 108 within the meaning of this definition. 109 (d) “Third-party reproductive services” means services 110 related to the use of eggs, sperm, or embryos that have been 111 donated by a third person to enable an infertile couple to 112 become parents. The term also means services related to 113 gestational surrogacy arrangements. 114 (2) GENERAL REQUIREMENTS.—An agency shall: 115 (a) Require all participants to undergo a mental health 116 evaluation by a mental health professional licensed under 117 chapter 490 or chapter 491, and to undergo a subsequent 118 evaluation every 2 years thereafter as long as the participant 119 remains in the agency’s database or is still contracting for 120 services with the agency. The agency shall request from the 121 mental health professional a written statement that the mental 122 health professional has met with the participant. The agency 123 shall retain a copy of the written statement for each 124 participant. The agency shall require a participant to sign a 125 release authorizing the agency to obtain the results of the 126 mental health evaluation. 127 (b) Require all donors and gestational surrogates to 128 undergo a medical evaluation by a physician licensed under 129 chapter 458 or chapter 459, and to undergo a subsequent 130 evaluation every 2 years thereafter as long as the donor or 131 gestational surrogate remains in the agency’s database. The 132 agency shall request from the physician a written statement that 133 the physician has met with the donor or gestational surrogate. 134 The agency shall retain a copy of the written statement for each 135 donor or gestational surrogate. The agency shall require all 136 donors and gestational surrogates to sign a release authorizing 137 the agency to obtain the results of the medical evaluation. 138 (c) Obtain a criminal background check from the Department 139 of Law Enforcement for each participant, and obtain an updated 140 criminal background check every 2 years thereafter as long as 141 the participant remains in the agency’s database or is still 142 contracting for services with the agency. 143 1. For donors and gestational surrogates, the agency shall 144 obtain the criminal background check prior to listing the donor 145 or gestational surrogate in the agency’s database of potential 146 donors or gestational surrogates. 147 2. For a commissioning couple, the agency shall obtain the 148 criminal background check prior to entering into a contract with 149 the commissioning couple to provide database, matching, or other 150 third-party reproductive services. 151 3. When analyzing and evaluating the criminal background 152 check to determine whether to include the donor or gestational 153 surrogate in its database or whether to enter into a contract 154 with a commissioning couple, the agency shall give particular 155 emphasis to past activities involving children, including, but 156 not limited to, child-related criminal offenses or child abuse. 157 (d) Require a written contract as provided for in 158 subsection (5) between the commissioning couple and the agency. 159 (e) Require all gestational surrogacy contracts between the 160 commissioning couple and the gestational surrogate to be in 161 writing. 162 (f) Require the commissioning couple and gestational 163 surrogate to undergo a legal consultation with independent legal 164 counsel regarding the terms of the gestational surrogacy 165 contract and the potential legal consequences of the gestational 166 surrogacy contract. 167 (g) Keep and maintain all funds that are to be used for the 168 compensation of a gestational surrogate or donor in an account 169 that is separate and apart from the agency’s business accounts 170 as specified in subsection (3). 171 (3) SECURITY REQUIREMENTS.—An agency that requires or 172 receives payment from a participant shall establish and maintain 173 a mechanism for ensuring that those funds are properly 174 maintained. 175 (a) An agency shall establish an escrow account with an 176 independent escrow agent and deposit into such account all 177 payments received by the agency from a participant. The agency 178 is not required to deposit into the escrow account payments 179 received from a participant which relate to the compensation and 180 operation of the agency. 181 (b) The agency shall establish the escrow account in a 182 Florida bank, Florida savings and loan association, or Florida 183 trust company, or with an attorney who is a member in good 184 standing with The Florida Bar. 185 (c) The escrow agent shall disburse funds from the escrow 186 account only upon receipt of an affidavit from the agency 187 specifying the purpose for which the disbursement is requested. 188 The escrow agent is entitled to rely upon the affidavit of the 189 agency and has no obligation to independently ascertain the 190 propriety of the requested disbursement so long as the escrow 191 agent has no actual knowledge that the affidavit is false in any 192 respect. The escrow agent shall retain all affidavits received 193 pursuant to this subsection for 5 years. 194 (d) The escrow agent shall maintain the account in such a 195 manner so that it is under the direct supervision and control of 196 the escrow agent. The escrow agent has a fiduciary duty to each 197 participant to maintain the escrow account in accordance with 198 good accounting principles and to release funds from escrow only 199 in accordance with this subsection. If the escrow agent receives 200 conflicting demands for the escrowed funds, the escrow agent 201 shall not disburse any funds and shall immediately notify the 202 agency and the affected participant of the dispute. 203 (e) If an agency fails to place funds in an escrow account 204 within 10 days after receipt of the funds, it is prima facie 205 evidence of a violation of this subsection. 206 (4) DISCLOSURE REQUIREMENTS.—An agency shall require all 207 participants to provide express and informed consent regarding 208 the proposed treatment, procedure, or process related to third 209 party reproductive services they are about to undertake. 210 (a) An agency shall provide to a participant a written 211 document that is in plain language and includes, at a minimum, 212 the following: 213 1. A description of the known and potential risks, 214 consequences, and benefits of assisted reproductive technology. 215 2. An explanation that there may be foreseen or unforeseen 216 legal consequences and that it is advisable to seek independent 217 legal counsel. 218 3. A statement that all confidentiality protections apply 219 to the extent the law allows, and information about what the 220 confidentiality protections are. 221 4. A statement that a participant has access to all of his 222 or her medical information to the extent the law allows. An 223 agency may charge reasonable fees for copies of the record. 224 5. Disclosure that a commissioning couple has the right to 225 access a summary of medical and psychological information about 226 donors and gestational surrogates. 227 6. The policy of the agency, if applicable, regarding the 228 number of embryos transferred and any limitation on the number 229 of embryos transferred, as well as the existence of national 230 guidelines as published by the American Society for Reproductive 231 Medicine and the Society for Assisted Reproductive Technology. 232 7. Information generally explaining and clarifying parental 233 rights of all participants. 234 8. A statement that all disclosures have been made pursuant 235 to this subsection. 236 (b) A participant gives express and informed consent by 237 signing the written document specified in paragraph (a). In 238 order for the express and informed consent to be valid, the 239 document must: 240 1. Be dated and signed by the agency and the participant; 241 2. Specify the length of time that the consent remains 242 valid; and 243 3. Advise the participant signing the document of the right 244 to receive a copy of it. 245 (5) CONTRACT REQUIREMENTS.—A contract entered into by an 246 agency and a participant for third-party reproductive services 247 must be in writing. The written contract must contain all 248 provisions, requirements, and prohibitions that are mandated by 249 this subsection before it is signed by the participant. The 250 agency shall give a copy of the signed contract to the 251 participant at the time the participant signs the contract. 252 Every contract for third-party reproductive services must: 253 (a) Set forth the participant’s total payment obligation 254 for services to be received pursuant to the contract. 255 (b) Specifically provide the agreed-upon payment plan if 256 the contract calls for payment in installments. 257 (c) Set forth in specific terms all services being 258 contracted for. 259 (d) Prescribe in bold-faced type and under conspicuous 260 caption all cancellation provisions of the contract. 261 (e) Specify the length of time that the contract remains 262 valid and the circumstances under which the contract is 263 terminated. 264 (6) ADVERTISING REQUIREMENTS.— 265 (a) An agency shall prominently display on all advertising 266 and promotional materials a statement that reads: “(NAME OF 267 AGENCY) is in full compliance with all statutory requirements 268 pursuant to section 742.175, Florida Statutes.” 269 (b) All advertising and promotional materials for an agency 270 must include how many years the agency has been in business and 271 identify the name of any professional organizations of which the 272 agency is a member. 273 (c) An agency may not use advertisements or promotional 274 materials that tend to deceive prospective participants 275 concerning the personnel, equipment, services, success rates, or 276 fee structure of the agency. 277 (d) For the purposes of this subsection, advertising and 278 promotional materials include, but are not limited to, marquee, 279 poster, flier, newspaper, magazine, television, radio, 280 billboard, or Internet media. 281 (7) PROHIBITED ACTS.—It is a violation of this section for 282 an agency to: 283 (a) Operate in violation of, or fail to comply with, the 284 requirements of this section. 285 (b) Engage in third-party reproductive services if the 286 owner or operator of the agency has had any arrests, charges, or 287 convictions within the last 5 years for an economic crime or a 288 crime that directly relates to the practice of his or her 289 profession, other health-care-related matters, fraud, 290 embezzlement, violence, moral turpitude, or controlled 291 substances. 292 (c) Enlist or use the services of donors or gestational 293 surrogates who are not United States citizens or permanent 294 residents. 295 (8) PENALTIES; REMEDIES.— 296 (a) A violation of this section is a deceptive and unfair 297 trade practice and constitutes a violation of the Florida 298 Deceptive and Unfair Trade Practices Act under part II of 299 chapter 501. 300 (b) A person who has sustained economic loss or personal or 301 emotional injury due to the failure of an agency to comply with 302 this section has a civil cause of action for compensatory 303 damages, injunctive relief, or any other appropriate relief in 304 law or equity. Upon prevailing, the plaintiff may recover 305 reasonable attorney’s fees and court costs. A defendant is 306 entitled to recover reasonable attorney’s fees and court costs 307 upon a finding that the plaintiff raised a claim that was 308 without substantial fact or legal support. 309 (c) If an agency violates this section and the aggrieved 310 party reports the violation to the appropriate controlling 311 licensing authority, it is the intent of the Legislature that 312 the licensing authority take into consideration whether the 313 violation constitutes unprofessional conduct. 314 Section 5. This act shall take effect July 1, 2010.
