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Bills Regulating Assisted Reproduction Fill State Legislatures: An Update
by Richard B. Vaughn, Esq., National Fertility Law Center, May 4, 2010
As consumers of fertility medical, legal and information services, you may already know that there is not a lot of legislation or regulation in this area of reproductive rights. However, in recent months there has been an unusually large number of legislative proposals across the country relating to assisted reproduction which could eventually have dramatic consequences for your assisted reproduction journey.
Here’s a short summary of many of these proposals.
As always, be sure to obtain updated legal advice particular to your situation from an attorney licensed in the state whose laws impact your journey.
AZ SENATE BILL 1306 and HR 2651 dictate information to be included as part of the informed consent process and prohibits the purchase, offer to purchase or advertisement for the purchase of human eggs (in effect, denying Arizona residents the option of using egg donation). Passed in April 2010.
CA ASSEMBLY BILL 995 regarding tissue bank licensing. This bill is inactive.
CA ASSEMBLY BILL 1317 would require disclosure of risks and other factors in egg donor advertisements. This bill is inactive.
CA ASSEMBLY BILL 2426 would prevent non-attorney surrogacy practitioners from having direct access to their clients’ funds. Non-attorney surrogate practitioners would be required to deposit their clients' unearned funds into either an: (1) independent and bonded escrow company, or (2) a trust account maintained by an attorney. This bill is currently pending.
FL SENATE BILL 7062, the Florida Assisted Reproductive Technology Act, would define an “agency” as any organization or individual who provides a database, matching or third party reproductive service (although there are no requirements related to agency training, education, or licensure).
The Act would require agencies to conduct mental health evaluations and criminal background checks on donors, gestational surrogates and intended parents every two years and would prohibit donors or gestational surrogates who are not US citizens or permanent residents. This bill died in committee but may re-emerge in the next legislative session.
IL HOUSE BILL 1082 (2009) amends a variety of Illinois statutes and would require an insurer, upon request of an insured intended parent, to provide maternity coverage for a gestational surrogate as a dependent for a term that extends throughout the duration of the expected pregnancy and for eight weeks after the birth of the child.
This bill is currently assigned to the Insurance Committee of the IL House of Representatives and would be effective immediately if passed; however, it appears this bill has effectively died in committee.
KS SENATE BILL 509 creates women's health and embryo monitoring program to collect and retain in "perpetuity" 70 data items, much of which is already collected and reported by the CDC. In addition, this bill requires tracking all eggs retrieved, fertilized, transplanted, frozen, and discarded, the status of all embryos, the number and type of fetal reductions, method for monitoring the health of patients even after they are no longer patients, and a reporting of how clinics are paid (failure to report or falsely reporting can result in felony charges).
It is unlikely this bill will be acted upon in the current legislative session.
MD S 19 proposed reducing the two year wait period to one year for purposes of insurance coverage. This bill failed in committee.
MD HOUSE BILL 281 and SENATE BILL 585 proposed to establish a commission on surrogate parenting to evaluate the health and social well being of children born as a result of surrogacy. This bill failed in committee.
MA SENATE BILL 485 would update the definition of infertility by shortening the time periods for trying to conceive required before for applicability of insurance coverage. This bill is still in committee.
MI SENATE BILL 647-652 and companion bills HOUSE BILL 5129-5134, impose reporting requirements on assisted reproduction clinics in addition to those already in place, including tracking and reporting of all embryos. This bill standardizes informed consent for ART and restricts stem cell research which was approved last year in a Michigan voters’ referendum. This bill has passed through both the House and Senate but is still pending.
MN SF 436/HF 890 adds presumption of parentage to paternity/maternity laws in favor of all intended parents in third-party ART matters. This bill has passed through committees in both the MN house and senate and awaits floor votes in each.
MO HOUSE BILL 1035 requires group health insurance policies providing coverage for more than 25 employees to also cover the diagnosis and treatment of infertility, including up to four cycles of IVF. This bill is still in Committee.
MS Initiative Measure No. 26 is a ballot initiative seeking an amendment to the state constitution which would define an unborn child as a human being starting at fertilization. This initiative is on the Fall 2010 ballot. Under the express terms of the Mississippi Constitution, the Bill of Rights cannot be amended by the initiative mechanism and it will likely be struck down in court.
OK HOUSE BILL 3077 would prohibit compensation to egg donors, but it died for lack of action by the OK Senate committee. This bill is dormant at the moment but is expected to be re-introduced in the next legislative session.
TN SENATE BILL 2136 and HOUSE BILL 2159, the Embryo Donation and Adoption Act, deems a child born from donated embryos as having been adopted and grants the same legal protections without court action. This bill also requires clinics to develop written contracts transferring ownership of embryos from donor to intended parents and to keep records for 21 years. This bill is in front of the judicial committee.
VA SENATE BILL 69 reduced the time requirement for a gestational carrier to give her consent to intended parent’s parentage to 3 days (and up to 180 days); allows matching of surrogates and intended parents but only where no compensation is involved; and applies only to married intended parents (single intended parents are not disallowed, they are just not specifically included in the language of this bill).
WA HOUSE BILL 2793 proposed to legalize compensated surrogacy in Washington, but it died for lack of action in the Washington Senate. This bill is likely to re-appear in the next legislative session.