Bill Text: MS HB1114 | 2012 | Regular Session | Introduced
Bill Title: Adoption of Human Embryos Act and Ethical Treatment of Human Embryos Act; create.
Spectrum: Partisan Bill (Republican 3-0)
Status: (Failed) 2012-03-06 - Died In Committee [HB1114 Detail]
Download: Mississippi-2012-HB1114-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Public Health and Human Services; Judiciary A
By: Representatives Arnold, Brown (20th), Gipson
House Bill 1114
AN ACT TO CREATE NEW SECTIONS 93-17-81 THROUGH 93-17-87, MISSISSIPPI CODE OF 1972, WHICH SHALL BE KNOWN AS THE "ADOPTION OF HUMAN EMBRYOS ACT;" TO PROVIDE THAT A LEGAL EMBRYO CUSTODIAN MAY RELINQUISH RIGHTS TO AN EMBRYO TO A RECIPIENT INTENDED PARENT; TO PROVIDE THAT A CHILD BORN AS A RESULT OF THE RELINQUISHED EMBRYO SHALL BE THE LEGAL CHILD OF THE RECIPIENT; TO PROVIDE FOR AN EXPEDITED ORDER OF ADOPTION OR PARENTAGE; TO CREATE NEW SECTION 93-17-2, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE TERMS "MINOR" AND "CHILD," AS USED IN THE ADOPTION LAWS, INCLUDE A HUMAN EMBRYO; TO AMEND SECTION 93-17-3, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE JURISDICTION OF MISSISSIPPI COURTS OVER PROCEEDINGS FOR THE ADOPTION OF A HUMAN EMBRYO THAT IS TRANSFERRED TO A RECIPIENT INTENDED PARENT; TO AMEND SECTION 93-17-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE WRITTEN CONTRACT BETWEEN THE LEGAL EMBRYO CUSTODIAN AND THE RECIPIENT INTENDED PARENT SHALL CONSTITUTE THE CONSENT TO THE ADOPTION; TO AMEND SECTION 93-17-13, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE FINAL DECREE IN PROCEEDINGS FOR THE ADOPTION OF A HUMAN EMBRYO MAY BE ENTERED IMMEDIATELY AND WITHOUT AN INTERLOCUTORY DECREE; TO AMEND SECTION 93-17-15, MISSISSIPPI CODE OF 1972, TO PROHIBIT ANY ACTION TO SET ASIDE A FINAL DECREE OF ADOPTION OF A HUMAN EMBRYO AFTER THE EMBRYO HAS BEEN IMPLANTED; TO CREATE NEW SECTIONS 93-31-1 THROUGH 93-31-25, MISSISSIPPI CODE OF 1972, WHICH SHALL BE KNOWN AS THE "ETHICAL TREATMENT OF HUMAN EMBRYOS ACT;" TO PROVIDE THAT IT SHALL BE UNLAWFUL FOR ANY PERSON OR ENTITY TO INTENTIONALLY OR KNOWINGLY CREATE OR ATTEMPT TO CREATE AN IN VITRO HUMAN EMBRYO BY ANY MEANS OTHER THAN FERTILIZATION OF A HUMAN EGG BY A HUMAN SPERM; TO PROVIDE FOR STANDARDS FOR PHYSICIANS AND FACILITIES PERFORMING IN VITRO FERTILIZATIONS; TO PROVIDE FOR CRIMINAL PENALTIES AND CIVIL SANCTIONS FOR VIOLATIONS OF THE ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 93-17-81, Mississippi Code of 1972:
93-17-81. Sections 93-17-81 through 93-17-87 shall be known and may be cited as the "Adoption of Human Embryos Act."
SECTION 2. The following shall be codified as Section 93-17-83, Mississippi Code of 1972:
93-17-83. As used in Sections 93-17-81 through 93-17-87, the following terms shall have the meanings in this section:
(a) "Embryo" or "human embryo" means an individual fertilized ovum of the human species from the single-cell stage to eight-week development.
(b) "Embryo relinquishment" or "legal transfer of rights to an embryo" means the relinquishment of rights and responsibilities by the person or persons who hold the legal rights and responsibilities for an embryo and the acceptance of those rights and responsibilities by a recipient intended parent.
(c) "Embryo transfer" means the medical procedure of physically placing an embryo into the uterus of a female.
(d) "Legal embryo custodian" means the person or persons who hold the legal rights and responsibilities for a human embryo and who relinquishes the embryo to another person or persons.
(e) "Recipient intended parent" means a person or persons who receive a relinquished embryo and who accepts full legal rights and responsibilities for the embryo and any child that may be born as a result of embryo transfer.
SECTION 3. The following shall be codified as Section 93-17-85, Mississippi Code of 1972:
93-17-85. (1) A legal embryo custodian may relinquish all rights and responsibilities for an embryo to a recipient intended parent before embryo transfer. A written contract shall be entered into between each legal embryo custodian and each recipient intended parent before embryo transfer for the legal transfer of rights to an embryo. The contract shall be signed by each legal embryo custodian for the embryo and by each recipient intended parent in the presence of a notary public and a witness. Initials or other designations may be used if the parties desire anonymity. The contract may include a written waiver by the legal embryo custodian of notice and service in any legal adoption or other parentage proceeding that may follow.
(2) If the embryo was created using donor gametes, the sperm or oocyte donors who irrevocably relinquished their rights in connection with in vitro fertilization shall not be entitled to any notice of the embryo relinquishment, nor shall their consent to the embryo relinquishment be required.
(3) Upon embryo relinquishment by each legal embryo custodian under subsection (1) of this section, the legal transfer of rights to an embryo shall be considered complete, and the embryo transfer shall be authorized.
(4) An unborn child, and a child born to a recipient intended parent as the result of embryo relinquishment under subsection (1) of this section shall be presumed to be the legal child of the recipient intended parent, provided that each legal embryo custodian and each recipient intended parent has entered into a written contract.
SECTION 4. The following shall be codified as Section 93-17-87, Mississippi Code of 1972:
93-17-87. (1) Before the birth of a child or following the birth of a child, a recipient intended parent may petition the chancery court for an expedited order of adoption or parentage. In those cases, the written contract between each legal embryo custodian and each recipient intended parent shall be acceptable in lieu of a surrender of rights.
(2) All petitions under Sections 93-17-81 through 93-17-87 shall be filed in the county in which any petitioner or any respondent resides.
(3) The court shall give effect to any written waiver of notice and service in the legal proceeding for adoption or parentage.
(4) In the interest of justice, to promote the stability of embryo transfers, and to promote the interests of unborn children and children who may be born following those embryo transfers, the court in its discretion may waive any technical requirements as the court deems just and proper.
SECTION 5. The following shall be codified as Section 93-17-89, Mississippi Code of 1972:
93-17-89. Upon a filing of a petition for adoption or parentage and the court finding that the petition meets the criteria required by Sections 93-17-81 through 93-17-87, an expedited order of adoption or parentage shall be issued and shall be a final order. The order shall terminate any future parental rights and responsibilities of any past or present legal embryo custodian or gamete donor in a child that results from the embryo transfer and shall vest those rights and responsibilities in the recipient intended parent.
SECTION 6. The following shall be codified as Section 93-17-2, Mississippi Code of 1972:
93-17-2. As used in this chapter, the terms "minor," "child" and "minor child" include a human embryo as defined in Section 93-17-83.
SECTION 7. Section 93-17-3, Mississippi Code of 1972, is amended as follows:
93-17-3. (1) Except as otherwise provided in subsections (2) and (3), a court of this state has jurisdiction over a proceeding for the adoption of a minor commenced under this chapter if:
(a) Immediately before commencement of the proceeding, the minor lived in this state with a parent, a guardian, a prospective adoptive parent or another person acting as parent, for at least six (6) consecutive months, excluding periods of temporary absence, or, in the case of a minor under six (6) months of age, lived in this state from soon after birth with any of those individuals and there is available in this state substantial evidence concerning the minor's present or future care;
(b) Immediately before commencement of the proceeding, the prospective adoptive parent lived in this state for at least six (6) consecutive months, excluding periods of temporary absence, and there is available in this state substantial evidence concerning the minor's present or future care;
(c) The agency that placed the minor for adoption is licensed in this state and it is in the best interest of the minor that a court of this state assume jurisdiction because:
(i) The minor and the minor's parents, or the minor and the prospective adoptive parent, have a significant connection with this state; and
(ii) There is available in this state substantial evidence concerning the minor's present or future care;
(d) The minor and the prospective adoptive parent are physically present in this state and the minor has been abandoned or it is necessary in an emergency to protect the minor because the minor has been subjected to or threatened with mistreatment or abuse or is otherwise neglected;
(e) The subject of the adoption is a human embryo transferred to a recipient intended parent under Sections 93-17-81 through 93-17-87; or
(f) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a) through (e), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to hear a petition for adoption of the minor, and it is in the best interest of the minor that a court of this state assume jurisdiction.
(2) A court of this state may not exercise jurisdiction over a proceeding for adoption of a minor if, at the time the petition for adoption is filed, a proceeding concerning the custody or adoption of the minor is pending in a court of another state exercising jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction Act or this section unless the proceeding is stayed by the court of the other state.
(3) If a court of another state has issued a decree or order concerning the custody of a minor who may be the subject of a proceeding for adoption in this state, a court of this state may not exercise jurisdiction over a proceeding for adoption of the minor unless:
(a) The court of this state finds that the court of the state which issued the decree or order:
(i) Does not have continuing jurisdiction to modify the decree or order under jurisdictional prerequisites substantially in accordance with the Uniform Child Custody Jurisdiction Act or has declined to assume jurisdiction to modify the decree or order; or
(ii) Does not have jurisdiction over a proceeding for adoption substantially in conformity with subsection (1)(a) through (e) or has declined to assume jurisdiction over a proceeding for adoption; and
(b) The court of this state has jurisdiction over the proceeding.
(4) Any person may be adopted in accordance with the provisions of this chapter in termtime or in vacation by an unmarried adult or by a married person whose spouse joins in the petition. The adoption shall be by sworn petition filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when it was abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do. The petition shall be accompanied by a doctor's or nurse practitioner's certificate showing the physical and mental condition of the child to be adopted and a sworn statement of all property, if any, owned by the child. In addition, the petition shall be accompanied by affidavits of the petitioner or petitioners stating the amount of the service fees charged by any adoption agencies or adoption facilitators used by the petitioner or petitioners and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition. If the doctor's or nurse practitioner's certificate indicates any abnormal mental or physical condition or defect, the condition or defect shall not, in the discretion of the chancellor, bar the adoption of the child if the adopting parent or parents file an affidavit stating full and complete knowledge of the condition or defect and stating a desire to adopt the child, notwithstanding the condition or defect. The court shall have the power to change the name of the child as a part of the adoption proceedings. The word "child" in this section shall be construed to refer to any person to be adopted, including an adult or a human embryo being transferred to a recipient intended parent under Sections 93-17-81 through 93-17-87.
(5) Adoption by couples of the same gender is prohibited.
(6) No person may be adopted before a court-ordered home study of the prospective adopting parties is satisfactorily completed if required by Section 93-17-11.
SECTION 8. Section 93-17-5, Mississippi Code of 1972, is amended as follows:
93-17-5. (1) Except as otherwise provided in this section, there shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before seventy-two (72) hours after the birth of the child:
(a) The parents, or parent, if only one (1) parent, though either is under the age of twenty-one (21) years; * * *
(b) If both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law, provided that, if one of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or
(c) The guardian ad litem of an abandoned child, upon petition showing that the names of the parents of such child are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:
(i) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi.
(ii) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.
(iii) The agent of the county Department of Human Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.
(2) Such consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by its next friend.
(3) In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a petition for determination of rights as provided in Section 93-17-6.
(4) If such consent is not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they are nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry; however, the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if it were an adult.
(5) Whenever the adoption proceeding involves the transfer of a human embryo, the written contract between the legal embryo custodian and the recipient intended parent as required under Section 93-17-85 shall constitute the consent to the adoption.
SECTION 9. Section 93-17-13, Mississippi Code of 1972, is amended as follows:
93-17-13. A final decree of adoption shall not be entered before the expiration of six (6) months from the entry of the interlocutory decree except: (a) when a child is a stepchild of a petitioner or is related by blood to the petitioner within the third degree according to the rules of the civil law or in any case in which the chancellor, in the exercise of his discretion, shall determine from all the proceedings and evidence in the cause that the six-month waiting period is not necessary or required for the benefit of the court, the petitioners or the child to be adopted, and shall so adjudicate in the decree entered in the cause, in either of which cases the final decree may be entered immediately without any delay and without an interlocutory decree; (b) when the child has resided in the home of any petitioner prior to the granting of the interlocutory decree, in which case the court may, in its discretion, shorten the waiting period by the length of time the child has thus resided; or (c) when the proceeding involves the adoption of a human embryo, in which case the final decree may be entered immediately without delay and without an interlocutory decree.
The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child, and its effect, unless otherwise specifically provided, shall be that: (a) the child shall inherit from and through the adopting parents and shall likewise inherit from the other children of the adopting parents to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi, and that the adopting parents and their other children shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock; (b) the child and the adopting parents and adoptive kindred are vested with all of the rights, powers, duties and obligations, respectively, as if such child had been born to the adopting parents in lawful wedlock, including all rights existing by virtue of Section 11-7-13; * * * however, * * * inheritance by or from the adopted child shall be governed by subsection (a) above; (c) that the name of the child shall be changed if desired; and (d) that the natural parents and natural kindred of the child shall not inherit by or through the child except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent. Nothing in this chapter shall restrict the right of any person to dispose of property under a last will and testament.
A final decree of adoption shall not be entered until a court-ordered home study is satisfactorily completed, if required in Section 93-17-11.
SECTION 10. Section 93-17-15, Mississippi Code of 1972, is amended as follows:
93-17-15. No action shall be brought to set aside any final decree of adoption, whether granted upon consent or personal process or on process by publication, except within six (6) months of the entry thereof; however, if the final decree of adoption is for the transfer of a human embryo, no action may be brought to set aside the decree after implantation of the embryo has occurred.
SECTION 11. The following shall be codified as Section 93-31-1, Mississippi Code of 1972:
93-31-1. This chapter shall be known and may be cited as the
"Ethical Treatment of Human Embryos Act."
SECTION 12. The following shall be codified as Section 93-31-3, Mississippi Code of 1972:
93-31-3. For purposes of this chapter, the following terms shall have the meanings in this section:
(a) "Donor" means an individual from whose body gametes were obtained, or an individual from whose body cells or tissues were obtained for the purpose of creating gametes or human embryos, whether for valuable consideration or not.
(b) "Gamete" means an egg (oocyte) or sperm.
(c) "Human embryo" means an organism with a human or predominantly human genetic constitution from the single-celled stage to approximately eight (8) weeks development that is derived by fertilization (in vitro or in utero), parthenogenesis, cloning (somatic cell nuclear transfer), or any other means from one (1) or more human gametes or human diploid cells.
(d) "In vitro" means outside the human body.
(e) "In vitro fertilization" means the formation of a human embryo outside the human body by union of human egg(s) with human sperm.
(f) "In vitro human embryo" means a human embryo created outside the human body.
(g) "Transfer" means the placement of a human embryo into the body of a woman.
(h) "Valuable consideration" means financial gain or advantage, including cash, in-kind payments, reimbursement for any costs incurred in connection with the removal, processing, disposal, preservation, quality control, storage, transfer, or donation of human gametes, including lost wages of the donor, as well as any other consideration.
SECTION 13. The following shall be codified as Section 93-31-5, Mississippi Code of 1972:
93-31-5. (1) It shall be unlawful for any person or entity to intentionally or knowingly create or attempt to create an in vitro human embryo by any means other than fertilization of a human egg by a human sperm.
(2) The creation of an in vitro human embryo shall be solely for the purpose of initiating a human pregnancy by means of transfer to the uterus of a human female for the treatment of human infertility. No person or entity shall intentionally or knowingly transfer or attempt to transfer an embryo into a human uterus that is not the product of fertilization of a human egg by a human sperm.
SECTION 14. The following shall be codified as Section 93-31-7, Mississippi Code of 1972:
93-31-7. No person or entity shall give or receive valuable consideration, offer to give or receive valuable consideration, or advertise for the giving or receiving of valuable consideration for the provision of gametes or in vitro human embryos. This section shall not apply to regulate or prohibit the procurement of gametes for the treatment of infertility being experienced by the patient from whom the gametes are being derived.
SECTION 15. The following shall be codified as Section 93-31-9, Mississippi Code of 1972:
93-31-9. The in vitro human embryo shall be given an identification by the facility for use within the medical facility. Records shall be maintained that identify the donors associated with the in vitro human embryo, and the confidentiality of those records shall be maintained as required by law.
SECTION 16. The following shall be codified as Section 93-31-11, Mississippi Code of 1972:
93-31-11. (1) A living in vitro human embryo is a biological human being who is not the property of any person or entity. The fertility physician and the medical facility that employs the physician owe a high duty of care to the living in vitro human embryo. Any contractual provision identifying the living in vitro embryo as the property of any party shall be null and void. The in vitro human embryo shall not be intentionally destroyed for any purpose by any person or entity or through the actions of that person or entity.
(2) An in vitro human embryo that fails to show any sign of life over a thirty-six-hour period outside a state of cryopreservation shall be considered no longer living.
SECTION 17. The following shall be codified as Section 93-31-13, Mississippi Code of 1972:
93-31-13. Only medical facilities meeting the standards of the American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists shall cause the fertilization of an in vitro human embryo. A person who engages in the creation of in vitro human embryos shall be qualified as a medical doctor licensed to practice medicine in this state and shall possess specialized training and skill in artificial reproductive technology in conformity with the standards established by the American Society for Reproductive Medicine or the American College of Obstetricians and Gynecologists.
SECTION 18. The following shall be codified as Section 93-31-15, Mississippi Code of 1972:
93-31-15. In the interest of reducing the risk of complications for both the mother and the transferred in vitro human embryos, including the risk of preterm birth associated with higher-order multiple gestations, a person or entity performing in vitro fertilization shall limit the number of in vitro human embryos created in a single cycle to the number to be transferred in that cycle in accordance with Section 93-31-17.
SECTION 19. The following shall be codified as Section 93-31-17, Mississippi Code of 1972:
93-31-17. (1) Where a woman under age forty (40) is to receive treatment using her own eggs or embryos created using her own eggs, whether fresh or previously cryopreserved, at the time of transfer no person or entity shall transfer more than two (2) embryos in any treatment cycle, regardless of the procedure used.
(2) Where a woman age forty (40) or older is to receive treatment using her own eggs or embryos created using her own eggs, whether fresh or previously cryopreserved, at the time of transfer no person or entity shall transfer more than three (3) embryos in any treatment cycle, regardless of the procedure used.
(3) Where a woman is to receive treatment using donated eggs or adopted embryos, no person or entity shall transfer more than two (2) donated eggs or two (2) adopted embryos in any treatment cycle, regardless of the woman's age at the time of transfer and regardless of the procedure used.
SECTION 20. The following shall be codified as Section 93-31-19, Mississippi Code of 1972:
93-31-19. In disputes arising between any parties regarding the in vitro human embryo, the judicial standard for resolving such disputes shall be the best interest of the in vitro human embryo.
SECTION 21. The following shall be codified as Section 93-31-21, Mississippi Code of 1972:
93-31-21. All facilities providing assisted reproductive technologies shall, at least twenty-four (24) hours before obtaining a signed contract for services, provide patients with informed consent as required by law and obtain a signed disclosure form before services commence. In addition to medical risks and information on outcome and success rates, the informed consent materials shall state in plain language the parental rights and duties of the donors, as well as their legal rights and duties regarding the disposition of in vitro human embryos that were not transferred due to either of the fertility patient's death, divorce, abandonment, or dispute over the custody of the in vitro human embryo.
SECTION 22. The following shall be codified as Section 93-31-23, Mississippi Code of 1972:
93-31-23. Notwithstanding any other provision of this chapter to the contrary, nothing in this chapter shall be construed to create or recognize any independent right to engage in the practice of in vitro fertilization or to create in vitro human embryos by any means.
SECTION 23. The following shall be codified as Section 93-31-25, Mississippi Code of 1972:
93-31-25. (1) Any person or entity that violates any provision of this chapter and derives a pecuniary gain from that violation shall be fined not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00).
(2) Any violation of this chapter by a medical doctor shall constitute unprofessional conduct under Section 73-25-29 and shall result in sanctions increasing in severity from censure to temporary suspension of license to permanent revocation of license.
(3) Any violation of this chapter may be the basis for denying an application for, denying an application for the renewal of, or revoking any license, permit, certificate, or any other form of permission required to practice or engage in a trade, occupation, or profession.
(4) Any violation of this chapter by an individual in the employ and under the auspices of a licensed health care facility to which the management of the facility consents, knows, or should know may be the basis for denying an application for, denying an application for the renewal of, temporarily suspending, or permanently revoking any operational license, permit, certificate, or any other form of permission required to operate a medical or health care facility.
SECTION 24. This act shall take effect and be in force from and after July 1, 2012.
