Illinois General Assembly - Full Text of SB4199
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Full Text of SB4199  102nd General Assembly

SB4199 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB4199

 

Introduced 3/29/2022, by Sen. David Koehler

 

SYNOPSIS AS INTRODUCED:
 
New Act
720 ILCS 5/11-1.20     was 720 ILCS 5/12-13
735 ILCS 5/13-212  from Ch. 110, par. 13-212
735 ILCS 5/13-215.1 new

    Creates the Illinois Fertility Fraud Act. Allows the following individuals to bring an action against any health care provider, embryologist, or any other person involved in any stage of the treatment who knowingly or intentionally used the health care provider's, embryologist's, or person's own human reproductive material, without the patient's informed written consent to treatment using the health care provider's or person's human reproductive material: a woman who gives birth to a child after receiving assisted reproductive treatment or any other artificial means used to cause pregnancy; the spouse of the woman; the surviving spouse of the woman; or a child born as a result of the treatment. Allows a donor of human reproductive material to bring an action against a health care provider who: treats a patient for infertility by using human reproductive material donated by the donor; and knows or reasonably should have known that the human reproductive material was used without the donor's consent or in a manner or to an extent other than that to which the donor consented. Provides that a plaintiff who prevails in an action under the Act is entitled to reasonable attorney's fees and compensatory and punitive damages or liquidated damages of $50,000. Amends the Criminal Code of 2012. Provides that a person commits a criminal sexual assault if that person is a health care provider who knowingly or intentionally provides assisted reproductive treatment to a patient by using the health care provider's own spermatozoon or ovum, without the patient's informed written consent to treatment using the health care provider's spermatozoon or ovum. Amends the Code of Civil Procedure. Provides that an action for fertility fraud under the Illinois Fertility Fraud Act must be commenced within the later of 20 years after: the procedure was performed; the 18th birthday of the child; the person first discovers evidence sufficient to bring an action against the defendant through DNA analysis; the person first becomes aware of the existence of a record that provides evidence sufficient to bring an action against the defendant; or the defendant confesses to the offense.


LRB102 26952 LNS 38148 b

 

 

A BILL FOR

 

SB4199LRB102 26952 LNS 38148 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Illinois Fertility Fraud Act.
 
6    Section 5. Legislative intent. The General Assembly finds
7that fertility fraud, or the assisted reproductive treatment
8of a patient using the health care provider's own human
9reproductive material without the patient's informed written
10consent, has caused significant harm and had a severe negative
11impact on residents of this State including former patients
12and their children. This conduct has never constituted or
13complied with the medical standard of care and violates
14doctor-patient trust. Often discovering the fraud through DNA
15testing many years later, these individuals must now cope with
16knowing that their bodies and autonomy were violated, grapple
17with the sexual nature of the conduct, and negotiate identity
18issues and changing family relationships. Therefore, it is the
19intent of the General Assembly that any civil action
20authorized by this Act shall be retroactive and apply to any
21treatment by a health care provider occurring prior to the
22effective date of this Act.
 

 

 

SB4199- 2 -LRB102 26952 LNS 38148 b

1    Section 10. Definitions. As used in this Act:
2    "Assisted reproductive treatment" means a method of
3causing pregnancy by any means other than through sexual
4intercourse, including:
5        (1) intrauterine or intracervical insemination;
6        (2) donation of eggs or sperm;
7        (3) donation of embryos;
8        (4) in vitro fertilization and embryo transfer; and
9        (5) intracytoplasmic sperm injection.
10    "Health care" means any phase of patient care, including,
11but not limited to: testing; diagnosis; prognosis; ancillary
12research; instructions; assisted reproduction; family
13planning, counseling, referrals, or any other advice in
14connection with conception; surgery or other care or treatment
15rendered by a physician or physicians, nurses,
16paraprofessionals or health care facility, intended for the
17physical, emotional, and mental well-being of persons.
18    "Health care provider" means a physician, physician
19assistant, advanced practice registered nurse, registered
20nurse, licensed practical nurse, any individual licensed under
21the laws of this State to provide health care, or any
22individual who handles human reproductive material in a health
23care setting.
24    "Human reproductive material" means:
25        (1) a human spermatozoon or ovum; or
26        (2) a human organism at any stage of development from

 

 

SB4199- 3 -LRB102 26952 LNS 38148 b

1    fertilized ovum to embryo.
2    "In vitro fertilization" means all medical and laboratory
3procedures that are necessary to effectuate the extracorporeal
4fertilization of egg and sperm.
5    "Physician" means a person licensed to practice medicine
6in all its branches in this State.
 
7    Section 15. Fertility fraud. The following individuals may
8bring an action against any health care provider,
9embryologist, or any other person involved in any stage of the
10treatment who knowingly or intentionally used the health care
11provider's, embryologist's, or person's own human reproductive
12material, without the patient's informed written consent to
13treatment using the health care provider's or person's human
14reproductive material:
15        (1) a woman who gives birth to a child after receiving
16    assisted reproductive treatment or any other artificial
17    means used to cause pregnancy;
18        (2) the spouse of a woman under paragraph (1);
19        (3) the surviving spouse of a woman under paragraph
20    (1); or
21        (4) a child born as a result of the treatment.
 
22    Section 20. Donor fertility fraud. A donor of human
23reproductive material may bring an action against a health
24care provider who:

 

 

SB4199- 4 -LRB102 26952 LNS 38148 b

1        (1) treats a patient for infertility by using human
2    reproductive material donated by the donor; and
3        (2) knows or reasonably should have known that the
4    human reproductive material was used:
5            (A) without the donor's consent; or
6            (B) in a manner or to an extent other than that to
7        which the donor consented.
 
8    Section 25. Rewards. A plaintiff who prevails in an action
9under this Act is entitled to reasonable attorney's fees and:
10        (1) compensatory and punitive damages; or
11        (2) liquidated damages of $50,000.
12    A plaintiff who prevails in an action brought under
13Section 15 is also entitled to the costs of the fertility
14treatment.
 
15    Section 30. Causes of action.
16    (a) A person who brings an action under Section 15 has a
17separate cause of action for each child born as the result of
18the fraudulent assisted reproductive treatment.
19    (b) A person who brings an action under Section 20 has a
20separate cause of action for each individual who received
21assisted reproductive treatment with the donor's human
22reproductive material.
 
23    Section 35. Other remedies. Nothing in this Act may be

 

 

SB4199- 5 -LRB102 26952 LNS 38148 b

1construed to prohibit a person from pursuing any other remedy
2provided by law.
 
3    Section 40. The Criminal Code of 2012 is amended by
4changing Section 11-1.20 as follows:
 
5    (720 ILCS 5/11-1.20)   (was 720 ILCS 5/12-13)
6    Sec. 11-1.20. Criminal sexual assault.
7    (a) A person commits criminal sexual assault if that
8person commits an act of sexual penetration and:
9        (1) uses force or threat of force;
10        (2) knows that the victim is unable to understand the
11    nature of the act or is unable to give knowing consent;
12        (3) is a family member of the victim, and the victim is
13    under 18 years of age; or
14        (4) is 17 years of age or over and holds a position of
15    trust, authority, or supervision in relation to the
16    victim, and the victim is at least 13 years of age but
17    under 18 years of age.
18    (a-5) A person commits criminal sexual assault if that
19person is a health care provider who knowingly or
20intentionally provides assisted reproductive treatment to a
21patient by using the health care provider's own spermatozoon
22or ovum, without the patient's informed written consent to
23treatment using the health care provider's spermatozoon or
24ovum.

 

 

SB4199- 6 -LRB102 26952 LNS 38148 b

1    (b) Sentence.
2        (1) Criminal sexual assault is a Class 1 felony,
3    except that:
4            (A) A person who is convicted of the offense of
5        criminal sexual assault as defined in paragraph (a)(1)
6        or (a)(2) after having previously been convicted of
7        the offense of criminal sexual assault or the offense
8        of exploitation of a child, or who is convicted of the
9        offense of criminal sexual assault as defined in
10        paragraph (a)(1) or (a)(2) after having previously
11        been convicted under the laws of this State or any
12        other state of an offense that is substantially
13        equivalent to the offense of criminal sexual assault
14        or to the offense of exploitation of a child, commits a
15        Class X felony for which the person shall be sentenced
16        to a term of imprisonment of not less than 30 years and
17        not more than 60 years, except that if the person is
18        under the age of 18 years at the time of the offense,
19        he or she shall be sentenced under Section 5-4.5-105
20        of the Unified Code of Corrections. The commission of
21        the second or subsequent offense is required to have
22        been after the initial conviction for this paragraph
23        (A) to apply.
24            (B) A person who has attained the age of 18 years
25        at the time of the commission of the offense and who is
26        convicted of the offense of criminal sexual assault as

 

 

SB4199- 7 -LRB102 26952 LNS 38148 b

1        defined in paragraph (a)(1) or (a)(2) after having
2        previously been convicted of the offense of aggravated
3        criminal sexual assault or the offense of predatory
4        criminal sexual assault of a child, or who is
5        convicted of the offense of criminal sexual assault as
6        defined in paragraph (a)(1) or (a)(2) after having
7        previously been convicted under the laws of this State
8        or any other state of an offense that is substantially
9        equivalent to the offense of aggravated criminal
10        sexual assault or the offense of predatory criminal
11        sexual assault of a child shall be sentenced to a term
12        of natural life imprisonment. The commission of the
13        second or subsequent offense is required to have been
14        after the initial conviction for this paragraph (B) to
15        apply. An offender under the age of 18 years at the
16        time of the commission of the offense covered by this
17        subparagraph (B) shall be sentenced under Section
18        5-4.5-105 of the Unified Code of Corrections.
19            (C) A second or subsequent conviction for a
20        violation of paragraph (a)(3) or (a)(4) or subsection
21        (a-5) or under any similar statute of this State or any
22        other state for any offense involving criminal sexual
23        assault that is substantially equivalent to or more
24        serious than the sexual assault prohibited under
25        paragraph (a)(3) or (a)(4) or subsection (a-5) is a
26        Class X felony.

 

 

SB4199- 8 -LRB102 26952 LNS 38148 b

1(Source: P.A. 99-69, eff. 1-1-16.)
 
2    Section 45. The Code of Civil Procedure is amended by
3changing Section 13-212 and by adding Section 13-215.1 as
4follows:
 
5    (735 ILCS 5/13-212)  (from Ch. 110, par. 13-212)
6    Sec. 13-212. Physician or hospital.
7    (a) Except as provided in Section 13-215 or 13-215.1 of
8this Act, no action for damages for injury or death against any
9physician, dentist, registered nurse or hospital duly licensed
10under the laws of this State, whether based upon tort, or
11breach of contract, or otherwise, arising out of patient care
12shall be brought more than 2 years after the date on which the
13claimant knew, or through the use of reasonable diligence
14should have known, or received notice in writing of the
15existence of the injury or death for which damages are sought
16in the action, whichever of such date occurs first, but in no
17event shall such action be brought more than 4 years after the
18date on which occurred the act or omission or occurrence
19alleged in such action to have been the cause of such injury or
20death.
21    (b) Except as provided in Section 13-215 or 13-215.1 of
22this Act, no action for damages for injury or death against any
23physician, dentist, registered nurse or hospital duly licensed
24under the laws of this State, whether based upon tort, or

 

 

SB4199- 9 -LRB102 26952 LNS 38148 b

1breach of contract, or otherwise, arising out of patient care
2shall be brought more than 8 years after the date on which
3occurred the act or omission or occurrence alleged in such
4action to have been the cause of such injury or death where the
5person entitled to bring the action was, at the time the cause
6of action accrued, under the age of 18 years; provided,
7however, that in no event may the cause of action be brought
8after the person's 22nd birthday. If the person was under the
9age of 18 years when the cause of action accrued and, as a
10result of this amendatory Act of 1987, the action is either
11barred or there remains less than 3 years to bring such action,
12then he or she may bring the action within 3 years of July 20,
131987.
14    (c) If the person entitled to bring an action described in
15this Section is, at the time the cause of action accrued, under
16a legal disability other than being under the age of 18 years,
17then the period of limitations does not begin to run until the
18disability is removed.
19    (d) If the person entitled to bring an action described in
20this Section is not under a legal disability at the time the
21cause of action accrues, but becomes under a legal disability
22before the period of limitations otherwise runs, the period of
23limitations is stayed until the disability is removed. This
24subsection (d) does not invalidate any statute of repose
25provisions contained in this Section. This subsection (d)
26applies to actions commenced or pending on or after the

 

 

SB4199- 10 -LRB102 26952 LNS 38148 b

1effective date of this amendatory Act of the 98th General
2Assembly.
3(Source: P.A. 98-1077, eff. 1-1-15.)
 
4    (735 ILCS 5/13-215.1 new)
5    Sec. 13-215.1. Fertility fraud limitation.Notwithstanding
6any other provision of the law, an action for fertility fraud
7under the Illinois Fertility Fraud Act must be commenced
8within the later of 20 years after:
9        (1) the procedure was performed;
10        (2) the 18th birthday of the child;
11        (3) the person first discovers evidence sufficient to
12    bring an action against the defendant through DNA
13    (deoxyribonucleic acid) analysis;
14        (4) the person first becomes aware of the existence of
15    a record that provides evidence sufficient to bring an
16    action against the defendant; or
17        (5) the defendant confesses to the offense.