SB4199 102ND GENERAL ASSEMBLY

LRB102 26952 LNS 38148 b

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.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Illinois Fertility Fraud Act.

Section 5. Legislative intent. The General Assembly finds that fertility fraud, or the assisted reproductive treatment of a patient using the health care provider's own human reproductive material without the patient's informed written consent, has caused significant harm and had a severe negative impact on residents of this State including former patients and their children. This conduct has never constituted or complied with the medical standard of care and violates doctor-patient trust. Often discovering the fraud through DNA testing many years later, these individuals must now cope with knowing that their bodies and autonomy were violated, grapple with the sexual nature of the conduct, and negotiate identity issues and changing family relationships. Therefore, it is the intent of the General Assembly that any civil action authorized by this Act shall be retroactive and apply to any treatment by a health care provider occurring prior to the effective date of this Act.

Section 10. Definitions. As used in this Act:

"Assisted reproductive treatment" means a method of causing pregnancy by any means other than through sexual intercourse, including:

(1) intrauterine or intracervical insemination;

(2) donation of eggs or sperm;

(3) donation of embryos;

(4) in vitro fertilization and embryo transfer; and

(5) intracytoplasmic sperm injection.

"Health care" means any phase of patient care, including, but not limited to: testing; diagnosis; prognosis; ancillary research; instructions; assisted reproduction; family planning, counseling, referrals, or any other advice in connection with conception; surgery or other care or treatment rendered by a physician or physicians, nurses, paraprofessionals or health care facility, intended for the physical, emotional, and mental well-being of persons.

"Health care provider" means a physician, physician assistant, advanced practice registered nurse, registered nurse, licensed practical nurse, any individual licensed under the laws of this State to provide health care, or any individual who handles human reproductive material in a health care setting.

"Human reproductive material" means:

(1) a human spermatozoon or ovum; or

(2) a human organism at any stage of development from fertilized ovum to embryo.

"In vitro fertilization" means all medical and laboratory procedures that are necessary to effectuate the extracorporeal fertilization of egg and sperm.

"Physician" means a person licensed to practice medicine in all its branches in this State.

Section 15. Fertility fraud. The following individuals may 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:

(1) a woman who gives birth to a child after receiving assisted reproductive treatment or any other artificial means used to cause pregnancy;

(2) the spouse of a woman under paragraph (1);

(3) the surviving spouse of a woman under paragraph (1); or

(4) a child born as a result of the treatment.

Section 20. Donor fertility fraud. A donor of human reproductive material may bring an action against a health care provider who:

(1) treats a patient for infertility by using human reproductive material donated by the donor; and

(2) knows or reasonably should have known that the human reproductive material was used:

(A) without the donor's consent; or

(B) in a manner or to an extent other than that to which the donor consented.

Section 25. Rewards. A plaintiff who prevails in an action under this Act is entitled to reasonable attorney's fees and:

(1) compensatory and punitive damages; or

(2) liquidated damages of $50,000.

A plaintiff who prevails in an action brought under Section 15 is also entitled to the costs of the fertility treatment.

Section 30. Causes of action.

(a) A person who brings an action under Section 15 has a separate cause of action for each child born as the result of the fraudulent assisted reproductive treatment.

(b) A person who brings an action under Section 20 has a separate cause of action for each individual who received assisted reproductive treatment with the donor's human reproductive material.

Section 35. Other remedies. Nothing in this Act may be construed to prohibit a person from pursuing any other remedy provided by law.

Section 40. The Criminal Code of 2012 is amended by changing Section 11-1.20 as follows:

(720 ILCS 5/11-1.20) (was 720 ILCS 5/12-13)

Sec. 11-1.20. Criminal sexual assault.

(a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:

(1) uses force or threat of force;

(2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;

(3) is a family member of the victim, and the victim is under 18 years of age; or

(4) is 17 years of age or over and holds a position of trust, authority, or supervision in relation to the victim, and the victim is at least 13 years of age but under 18 years of age.

(a-5) A person commits 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.

(b) Sentence.

(1) Criminal sexual assault is a Class 1 felony, except that:

(A) A person who is convicted of the offense of criminal sexual assault as defined in paragraph (a)(1) or (a)(2) after having previously been convicted of the offense of criminal sexual assault or the offense of exploitation of a child, or who is convicted of the offense of criminal sexual assault as defined in paragraph (a)(1) or (a)(2) after having previously been convicted under the laws of this State or any other state of an offense that is substantially equivalent to the offense of criminal sexual assault or to the offense of exploitation of a child, commits a Class X felony for which the person shall be sentenced to a term of imprisonment of not less than 30 years and not more than 60 years, except that if the person is under the age of 18 years at the time of the offense, he or she shall be sentenced under Section 5-4.5-105 of the Unified Code of Corrections. The commission of the second or subsequent offense is required to have been after the initial conviction for this paragraph (A) to apply.

(B) A person who has attained the age of 18 years at the time of the commission of the offense and who is convicted of the offense of criminal sexual assault as defined in paragraph (a)(1) or (a)(2) after having previously been convicted of the offense of aggravated criminal sexual assault or the offense of predatory criminal sexual assault of a child, or who is convicted of the offense of criminal sexual assault as defined in paragraph (a)(1) or (a)(2) after having previously been convicted under the laws of this State or any other state of an offense that is substantially equivalent to the offense of aggravated criminal sexual assault or the offense of predatory criminal sexual assault of a child shall be sentenced to a term of natural life imprisonment. The commission of the second or subsequent offense is required to have been after the initial conviction for this paragraph (B) to apply. An offender under the age of 18 years at the time of the commission of the offense covered by this subparagraph (B) shall be sentenced under Section 5-4.5-105 of the Unified Code of Corrections.

(C) A second or subsequent conviction for a violation of paragraph (a)(3) or (a)(4) or subsection (a-5) or under any similar statute of this State or any other state for any offense involving criminal sexual assault that is substantially equivalent to or more serious than the sexual assault prohibited under paragraph (a)(3) or (a)(4) or subsection (a-5) is a Class X felony.

(Source: P.A. 99-69, eff. 1-1-16.)

Section 45. The Code of Civil Procedure is amended by changing Section 13-212 and by adding Section 13-215.1 as follows:

(735 ILCS 5/13-212) (from Ch. 110, par. 13-212)

Sec. 13-212. Physician or hospital.

(a) Except as provided in Section 13-215 or 13-215.1 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.

(b) Except as provided in Section 13-215 or 13-215.1 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person's 22nd birthday. If the person was under the age of 18 years when the cause of action accrued and, as a result of this amendatory Act of 1987, the action is either barred or there remains less than 3 years to bring such action, then he or she may bring the action within 3 years of July 20, 1987.

(c) If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.

(d) If the person entitled to bring an action described in this Section is not under a legal disability at the time the cause of action accrues, but becomes under a legal disability before the period of limitations otherwise runs, the period of limitations is stayed until the disability is removed. This subsection (d) does not invalidate any statute of repose provisions contained in this Section. This subsection (d) applies to actions commenced or pending on or after the effective date of this amendatory Act of the 98th General Assembly.

(Source: P.A. 98-1077, eff. 1-1-15.)

(735 ILCS 5/13-215.1 new)

Sec. 13-215.1. Fertility fraud limitation.Notwithstanding any other provision of the law, an action for fertility fraud under the Illinois Fertility Fraud Act must be commenced within the later of 20 years after:

(1) the procedure was performed;

(2) the 18th birthday of the child;

(3) the person first discovers evidence sufficient to bring an action against the defendant through DNA (deoxyribonucleic acid) analysis;

(4) the person first becomes aware of the existence of a record that provides evidence sufficient to bring an action against the defendant; or

(5) the defendant confesses to the offense.