ASSEMBLY, No. 496

 

STATE OF NEW JERSEY

 

210th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2002 SESSION

 

 

Sponsored by:

Assemblyman NEIL M. COHEN

District 20 (Union)

 

 

 

 

SYNOPSIS

    Requires advance written directives for disposition of frozen human embryos.

 

CURRENT VERSION OF TEXT

    Introduced Pending Technical Review by Legislative Counsel.

 


An Act requiring advance written directives concerning the disposition of frozen human embryos and supplementing Title 26 of the Revised Statutes.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. The Legislature finds and declares that:

    a. There is a need for a mechanism to clarify the terms and conditions governing the disposition of cyropreserved eggs or embryos prior to a couple or individual undergoing in vitro and other assisted reproduction procedures in order to reduce the risk of costly and time-consuming litigation with respect to the disposition of abandoned embryos;

    b. The fertility industry which provides assisted reproduction services to couples and individuals is a multi-billion dollar industry with hundreds of fertility clinics nationwide, the vast majority of them directed and staffed by ethical personnel intent on following appropriate procedures to help couples and individuals;

    c. There have, however, been allegations in various parts of the country that medical personnel have transferred sperm, ova or embryos to researchers or implanted sperm, ova or embryos into other persons without the written informed consent of the donors, and these practices are unethical; and

    d. It is, therefore, in the public interest to provide appropriate protections for couples and individuals undergoing in vitro and other assisted reproduction procedures by enacting legislation which requires physicians and other medical personnel to obtain written consent from their patients and written direction as to the disposition of cyropreserved eggs or embryos prior to beginning these services.

 

    2. a. A person, firm, partnership, corporation, association, agency or other entity doing business in this State which provides in vitro or other assisted reproduction services to couples or individuals, in which eggs or embryos will be cyropreserved for storage, shall require couples or individuals to provide advance written consent for these services and advance written directives as to the disposition of the cyropreserved eggs or embryos. The consent and directive shall be provided by the couple or individual prior to receiving an in vitro or other assisted reproduction service on a form prescribed by the Commissioner of Health and Senior Services. The form shall be signed and dated by the male and female partner and a witness for each, or by the individual without a partner and a witness for that individual, as applicable, in addition to the physician who removes the ova and the clinician who procures the sperm, and notarized. Nothing in this section shall affect the obligation of a physician under current law to obtain the informed consent of a patient before performing a medical procedure that may significantly affect the patient's health or ability to conceive, or both.

    b. The form containing the advance written consent and directive shall include the name of the patient, the type and number, if applicable, of sperm, ova or embryos donated, the name of the clinic or storage facility, or the name of another donee for a specified purpose which shall be clearly stated. The form shall be retained in the patient's medical record, and a copy shall be provided to the patient, as well as to the hospital in those cases in which the services are provided in a hospital.

    c. The form provided by the clinic or storage facility to the male and female partner, or the individual without a partner, as applicable, which prescribes advance written directives as to the disposition of cyropreserved eggs or embryos, shall indicate the time limit on storage of the cyropreserved eggs or embryos at the clinic or storage facility and shall provide, at a minimum, the following choices for disposition in the circumstances indicated:

    (1) In the event of the death of the male partner:

            (a) made available to the female partner;

            (b) donation for research purposes;

            (c) thawed with no further action taken;

            (d) donation to another couple or individual; or

            (e) other disposition which shall be clearly stated.

    (2) In the event of the death of the female partner:

            (a) made available to the male partner;

            (b) donation for research purposes;

            (c) thawed with no further action taken;

            (d) donation to another couple or individual; or

            (e) other disposition which shall be clearly stated.

    (3) In the event of the death of both partners:

            (a) donation for research purposes;

            (b) thawed with no further action taken;

            (c) donation to another couple or individual; or

            (d) other disposition which shall be clearly stated.

    (4) In the event of the separation or divorce of the partners:

            (a) made available to the female partner;

            (b) made available to the male partner;

            (c) donation for research purposes;

            (d) thawed with no further action taken;

            (e) donation to another couple or individual; or

            (f) other disposition which shall be clearly stated.

    (5) In the event of the partners' decision to abandon by request the cyropreserved eggs or embryos or a failure to pay storage fees:

            (a) donation for research purposes;

            (b) thawed with no further action taken;

            (c) donation to another couple or individual; or

            (d) other disposition which shall be clearly stated.

    (6) In the event of the death of a patient who is without a partner:

            (a) donation for research purposes;

            (b) thawed with no further action taken;

            (c) donation to another couple or individual; or

            (d) other disposition which shall be clearly stated.

    (7) In the event of the decision by a patient who is without a partner to abandon by request the cyropreserved eggs or embryos or a failure to pay storage fees:

            (a) donation for research purposes;

            (b) thawed with no further action taken;

            (c) donation to another couple or individual; or

            (d) other disposition which shall be clearly stated.

    For the purposes of this subsection:

    "Abandon by request" means the male and female partner, or an individual without a partner, as applicable, cease participation in the assisted reproduction program of the clinic or storage facility by notifying the clinic or storage facility in writing to that effect. Within 30 days of the receipt of this written notification, the clinic or storage facility shall send a written notice to the male and female partner, or the individual without a partner, as applicable, that the advance directive for disposition in the event of a decision to abandon by request will be executed, and shall then proceed to do so. A copy of the written notification from, and the written notice to, the male and female partner, or the individual without a partner, as applicable, shall be retained in the patient's medical record.

    "Failure to pay storage fees" means the clinic or storage facility which is to receive the storage fees from the male and female partner, or the individual without a partner, as applicable, has not received those fees for a period of three consecutive years, at which point the clinic or storage facility shall notify, by certified mail at the last known address, the male and female partner, or the individual without a partner, as applicable, that the advance directive for disposition in the event of a failure to pay storage fees will be executed unless the patient contacts the clinic or storage facility. If the patient does not contact the clinic or storage facility within six months from the date of the notification, the clinic or storage facility shall issue a second notification by certified mail. A copy of each written notification and mail receipt shall be retained in the patient's medical record. If the patient does not contact the clinic or storage facility within 30 days from the date of the second notification, the clinic or storage facility shall proceed to execute the advance directive for disposition in the event of a failure to pay storage fees.

    d. The male and female partner, or the individual without a partner, as applicable, who chooses to donate to another couple or individual pursuant to subsection c. of this section shall meet donor qualifications in accordance with regulations adopted by the Commissioner of Health and Senior Services.

    e. The male and female partner, or the individual without a partner, as applicable, may modify an advance written directive for disposition of cyropreserved eggs or embryos at any time in writing only. The modification shall made be on a form prescribed by the Commissioner of Health and Senior Services, which shall be signed and dated by the male and female partner and a witness for each, or by the individual without a partner and a witness for that individual, as applicable, and the attending physician, and notarized.

 

    3. The Commissioner of Health and Senior Services, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of this act.

 

    4. This act shall take effect on the 180th day after enactment, but the Commissioner of Health and Senior Services may take such anticipatory administrative action in advance as shall be necessary for the implementation of the act.

 

 

STATEMENT

 

    This bill requires couples or individuals to provide advance written consent for in vitro or other assisted reproduction services and advance written directives as to the disposition of cyropreserved eggs or embryos, which are to be made on a form prescribed by the Commissioner of Health and Senior Services.

    The bill takes effect on the 180th day after enactment, but the commissioner is authorized to take anticipatory administrative action in advance as necessary to implement the provisions of the bill.

    This bill is intended to ensure that the ultimate decisions regarding the disposition of frozen embryos are made by the persons responsible for their creation, and to provide for the execution of a standardized, binding agreement between couples which will govern disposition in circumstances such as death, separation or divorce, abandonment of the frozen embryos, or failure to pay storage fees, and thereby reduce legal uncertainties and the risk of costly and time-consuming litigation, as well as the risk of liability for clinics and storage facilities which comply with the provisions of this bill with respect to the disposition of abandoned embryos.