12 Apr 2010 Spring 2010 ART Legislative Update

Assisted Reproduction Legislative Update

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. However, there are actually quite a few legislative proposals being debated all across the country relating to assisted reproduction at the moment which could eventually have dramatic consequences (positive and negative) for your assisted reproduction journey. Below is a short summary of many of these proposals (However, as always, it is imperative that you obtain legal advice particular to your situation from NFLC or an attorney licensed in the state whose laws impact your journey.)

Arizona
AZ SB 1306 and HR 2651 dictates 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).

California
CA AB 2426 would prevent non-attorney surrogacy practitioners from having direct access to their client's 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.

Florida
FL S 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.

Illinois
IL HB 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 8 weeks after the birth of the child. This is currently assigned to the Insurance Committee of the IL House of Representatives and would be effective immediately if passed.

Kansas
KS SB 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).

Maryland
MD S 19 improves the existing infertility insurance requirement to reduce the two year wait period to one year.

MD HB 281 and SB 585 establishes a commission on surrogate parenting to evaluate the health and social well being of children born as a result of surrogacy.

Michigan
MI SB 647-652 and companion bills HB 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.

Minnesota
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.

Missouri
MO HB 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.

Mississippi
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.  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.

Oklahoma
OK HB 3077 would prohibit compensation to egg donors, but it died for lack of action by the OK senate committee.

Tennessee
TN SB 2136 and HB 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.

Washington
WA HB 2793 proposed to legalize compensated surrogacy in Washington, but it died for lack of action in the WA senate.