BILL NUMBER: AB 1217 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 18, 2011
An act to amend Section 7613 of, and to add Section 7542 to, the
Family Code, to amend Section 1374.55 of, to add Section 1374.555 to,
to add Division 106.5 (commencing with Section 126000) to, to repeal
Sections 125315 and 125320 of, and to repeal Chapter 1.5 (commencing
with Section 125325) of Part 5.5 of Division 106 of, the Health and
Safety Code, and to amend Section 10119.6 of, and to add Section
10119.65 to, the Insurance Code, relating to assisted reproductive
technology.
LEGISLATIVE COUNSEL'S DIGEST
AB 1217, as introduced, Fuentes. Assisted reproductive technology.
(1) Under existing law, the State Department of Public Health
licenses and regulates health care facilities and oversees the
provision of various health care services. Existing law requires a
physician and surgeon or other health care provider delivering
fertility treatment to provide his or her patient with specified
information relating to the options for disposition of human embryos
remaining following fertility treatment and specifies how the embryos
may be disposed. Existing law also requires specified information be
given by a person or entity advertising for oocyte donation
associated with delivery of fertility treatment that includes
assisted oocyte production and financial payment or compensation of
any kind.
This bill would establish the Model Act Governing Assisted
Reproductive Technology, which would govern the provision of assisted
reproduction, as defined. The bill would require informed consent by
all participants prior to the commencement of assisted reproduction,
as specified, and would require that binding agreements be reached
by various parties relating to the future use of embryos created. The
bill would amend, repeal, or recast related provisions.
This bill would require all participants known to the assisted
reproductive technology provider to undergo a mental health
consultation and to be offered continuing mental health counseling to
all participants, as specified. The bill would set quality assurance
standards for assisted reproductive technology providers, clinics,
and storage facilities. The bill would establish enforcement
provisions and would set procedures for civil suits under these
provisions, including presumptions, professional standards of care,
and statutes of limitations. By expanding the definition of a crime,
this bill would impose a state-mandated local program.
The bill would declare that it does not amend Proposition 71
relating to stem cell research, exempt from the provisions of this
bill any activities that are within the jurisdiction of Proposition
71, the California Stem Cell Research and Cures Act, approved by the
voters at the November 2, 2004, general election.
(2) Under existing law, the child of a wife cohabiting with her
husband is conclusively presumed to be a child of the marriage, as
provided, but authorizes the presumed father to bring a motion for
blood tests within 2 years of the child's birth for the purpose of
rebutting that presumption.
This bill would additionally prohibit the legal spouse of a woman
who gives birth to a child by means of assisted reproduction from
challenging the parentage of the child unless he or she brings the
action within 2 years of learning of the child's birth and the court
finds that he or she did not consent to assisted reproduction. The
bill would also authorize a proceeding to adjudicate parentage at any
time if the court determines that legal spouse did not provide
gametes for, or before or after the birth of the child did not
consent to, assisted reproduction by the individual who gives birth,
the legal spouse and the parent of the child have not cohabited since
the probable time of assisted reproduction, and the legal spouse
never openly held out the child as his or her own.
The Uniform Parentage Act provides that if, under the supervision
of a licensed physician and surgeon and with the consent of her
husband, a wife is inseminated artificially with semen donated by a
man not her husband, the husband is treated in law as if he were the
natural father of a child thereby conceived. The act further provides
that the donor of semen provided to a licensed physician and surgeon
or to a licensed sperm bank for use in artificial insemination or in
vitro fertilization of a woman other than the donor's wife is
treated in law as if he were not the natural father of a child
thereby conceived.
This bill would provide that, notwithstanding those provisions, an
individual who provides gametes for, or consents to, assisted
reproduction by a woman with the intent to be a parent of her child
is a parent of the resulting child.
(3) Existing law, the Knox-Keene Health Care Service Plan Act of
1975, provides for the regulation of health care service plans by the
Department of Managed Health Care and makes a willful violation of
the act a crime. Existing law provides for the regulation of health
insurers by the Department of Insurance. Existing law requires every
health care service plan contract or health insurance policy that is
issued on a group basis to offer coverage for the treatment of
infertility, as defined.
This bill would require every health care service plan contract or
health insurance policy that is issued, amended, renewed, or
delivered on or after January 1, 2012, that provides coverage for the
treatment of infertility, as defined, to use a specified definition
of "infertility." The bill would authorize the Department of Managed
Health Care or the Department of Insurance to designate certain
procedures or treatments as experimental and not required coverage
under those provisions. The bill would require every health care
service plan or health insurer providing treatment of infertility to
provide each enrollee or insured a prominent notice of the specific
coverage provided under his or her individual or group plan contract
or policy. The bill would authorize a health care service plan or
health insurer providing treatment of infertility to require that
participating providers have specified board certifications.
Because a willful violation of the bill's provisions relative to
health care service plans would be a crime, the bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7542 is added to the Family Code, to read:
7542. (a) Notwithstanding Section 7540, the legal spouse of a
woman who gives birth to a child by means of assisted reproduction
may not challenge the parentage of the child unless both of the
following apply:
(1) Within two years after learning of the birth of the child a
proceeding is commenced to adjudicate parentage.
(2) The court finds that the legal spouse did not consent to
assisted reproduction, before or after the birth of the child.
(b) A proceeding to adjudicate parentage may be maintained at any
time if the court determines all of the following:
(1) The legal spouse did not provide gametes for, or before or
after the birth of the child did not consent to, assisted
reproduction by the individual who gives birth.
(2) The legal spouse and the parent of the child have not
cohabited since the probable time of assisted reproduction.
(3) The legal spouse never openly held out the child as his or her
own.
(c) The limitation provided in this section shall apply to a
marriage declared invalid after assisted reproduction.
SEC. 2. Section 7613 of the Family Code is amended to read:
7613. (a) If, under the supervision of a licensed physician and
surgeon and with the consent of her husband, a wife is inseminated
artificially with semen donated by a man not her husband, the husband
is treated in law as if he were the natural father of a child
thereby conceived. The husband's consent must be in writing and
signed by him and his wife. The physician and surgeon shall certify
their signatures and the date of the insemination, and retain the
husband's consent as part of the medical record, where it shall be
kept confidential and in a sealed file. However, the physician and
surgeon's failure to do so does not affect the father and child
relationship. All papers and records pertaining to the insemination,
whether part of the permanent record of a court or of a file held by
the supervising physician and surgeon or elsewhere, are subject to
inspection only upon an order of the court for good cause shown.
(b) The Except as provided in subdivision
(c), the donor of semen provided to a licensed physician and
surgeon or to a licensed sperm bank for use in artificial
insemination or in vitro fertilization of a woman other than the
donor's wife is treated in law as if he were not the natural father
of a child thereby conceived.
(c) Notwithstanding subdivision (a) or (b), an individual who
provides gametes for, or consents to, assisted reproduction by a
woman with the intent to be a parent of her child is a parent of the
resulting child.
SEC. 3. Section 1374.55 of the Health and Safety Code is amended
to read:
1374.55. (a) On and after January 1, 1990, every health care
service plan contract which that is
issued, amended, or renewed that covers hospital, medical, or
surgical expenses on a group basis, where the plan is not a health
maintenance organization as defined in Section 1373.10, shall offer
coverage for the treatment of infertility, except in vitro
fertilization, under those terms and conditions as may be agreed upon
between the group subscriber and the plan. Every plan shall
communicate the availability of that coverage to all group
contractholders and to all prospective group contractholders with
whom they are negotiating.
(b) (1) For purposes of this
section subdivision (a), until January 1, 2012 ,
"infertility" means either (1) the presence of a
demonstrated condition recognized by a licensed physician and surgeon
as a cause of infertility, or (2) the inability
to conceive a pregnancy or to carry a pregnancy to a live birth after
a year or more of regular sexual relations without contraception.
"Treatment for
(2) For purposes of this section:
(A) "Treatment of infertility"
means procedures consistent with established medical practices in the
treatment of infertility by licensed physicians and surgeons
including, but not limited to, diagnosis, diagnostic tests,
medication, surgery, and gamete intrafallopian transfer. "In
(B) "In vitro fertilization"
means the laboratory medical procedures involving the actual in vitro
fertilization process.
(c) On and after January 1, 1990, every health care service plan
which that is a health maintenance
organization, as defined in Section 1373.10, and which
that issues, renews, or amends a health care
service plan contract that provides group coverage for hospital,
medical, or surgical expenses shall offer the coverage specified in
subdivision (a), according to the terms and conditions that may be
agreed upon between the group subscriber and the plan to group
contractholders with at least 20 employees to whom the plan is
offered. The plan shall communicate the availability of the coverage
to those group contractholders and prospective group contractholders
with whom the plan is negotiating.
(d) On and after January 1, 2012, with respect to every health
care service plan contract that is covered by subdivision (a) and
every health care service plan that is covered by subdivision (c),
the following provisions apply:
(1) "Infertility" means any of the following:
(A) As a result of a disease or condition that causes abnormal
function of the reproductive system, the inability to conceive after
attempts at conception by unprotected sexual intercourse have been
made for at least one year or the inability to sustain a pregnancy to
live birth.
(B) The presence of another condition recognized by accepted
medical standards as a cause of the inability to achieve or sustain a
pregnancy to live birth.
(C) The desire to achieve pregnancy by means other than sexual
intercourse.
(2) Treatment of infertility provided under subdivision (a) may
not be denied on the basis that a person desires to achieve pregnancy
by means other than sexual intercourse, as described in subparagraph
(C) of paragraph (1).
(3) (A) The department may designate, from time to time, and may
amend, a list of assisted reproductive technology procedures and
treatments that are considered to be experimental. Experimental
treatment of infertility is not required coverage under subdivision
(a).
(B) For purposes of this paragraph, "assisted reproductive
technology" (ART) means any medical or scientific intervention,
including assisted reproduction, provided for the purpose of
achieving live birth that results from assisted conception. "Assisted
conception" means the formation of a human embryo with the intent to
produce a live birth.
(4) (A) A health care service plan that offers treatment of
infertility under subdivision (a) shall provide notice to each
enrollee in the plan of the specific coverage provided by the plan
contact.
(B) The notice shall be prominently positioned in any literature,
application, or plan description made available or distributed by the
plan to enrollees.
(C) A health care service plan that offers treatment of
infertility under subdivision (a) may require that any physician and
surgeon participating in the treatment of infertility shall be one of
the following:
(i) Board certified in obstetrics and gynecology by the American
Board of Obstetrics and Gynecology and have a practice comprised
substantially of infertility cases.
(ii) Board certified in both obstetrics and gynecology and in
reproductive endocrinology by the American Board of Obstetrics and
Gynecology, with a practice comprised substantially of infertility
cases.
(iii) Board certified in both andrology and urology by the
American Board of Urology.
(d)
(e ) Nothing in this section shall be
construed to deny or restrict in any way any existing right or
benefit to coverage and treatment of infertility under an existing
law, plan or policy.
(e)
(f ) Nothing in this section shall be
construed to require any employer that is a religious organization to
offer coverage for forms of treatment of infertility in a manner
inconsistent with the religious organization's religious and ethical
principles.
(f)
(g ) Nothing in this section shall be
construed to require any plan, which is a subsidiary of an entity
whose owner or corporate member is a religious organization, to offer
coverage for treatment of infertility in a manner inconsistent with
that religious organization's religious and ethical principles.
For purposes of this subdivision, "subsidiary" of a specified
corporation means a corporation more than 45 percent of the voting
power of which is owned directly, or indirectly through one or more
subsidiaries, by the specified corporation.
SEC. 4. Section 1374.555 is added to the Health and Safety Code,
to read:
1374.555. (a) On and after January 1, 2012, every health care
service plan contract that is issued, amended, renewed, or delivered
that provides coverage for the treatment of infertility on an
individual basis shall be governed by the definitions and
requirements under this section.
(b) For purposes of this section, the following definitions shall
apply:
(1) "Assisted reproductive technology" means any medical or
scientific intervention, including assisted reproduction, provided
for the purpose of achieving live birth that results from assisted
conception. "Assisted conception" means the formation of a human
embryo with the intent to produce a live birth.
(2) "Infertility" means any of the following:
(A) As a result of a disease or condition that causes abnormal
function of the reproductive system, the inability to conceive after
attempts at conception by unprotected sexual intercourse have been
made for at least one year or the inability to sustain a pregnancy to
live birth.
(B) The presence of another condition recognized by accepted
medical standards as a cause of the inability to achieve or sustain a
pregnancy to live birth.
(C) The desire to achieve pregnancy by means other than sexual
intercourse.
(3) "Treatment of infertility" has the same meaning as set forth
in Section 1374.55.
(c) Treatment of infertility provided under subdivision (a) may
not be denied on the basis that a person desires to achieve pregnancy
by means other than sexual intercourse, as described in subparagraph
(C) of paragraph (2) of subdivision (b).
(d) The department may designate, from time to time, and may
amend, a list of assisted reproductive technology procedures and
treatments that are considered to be experimental. Experimental
treatment of infertility is not required coverage under subdivision
(a).
(e) (1) A health care service plan that offers treatment of
infertility under this section shall provide notice to each enrollee
in the plan of the specific coverage provided by the plan contract.
(2) The notice shall be prominently positioned in any literature,
application, or plan description made available or distributed by the
plan to enrollees.
(f) A health care service plan that offers treatment of
infertility under this section may require that any physician and
surgeon participating in the treatment of infertility shall be one of
the following:
(1) Board certified in obstetrics and gynecology by the American
Board of Obstetrics and Gynecology and have a practice comprised
substantially of infertility cases.
(2) Board certified in both obstetrics and gynecology and in
reproductive endocrinology by the American Board of Obstetrics and
Gynecology, with a practice comprised substantially of infertility
cases.
(3) Board certified in both andrology and urology by the American
Board of Urology.
SEC. 5. Section 125315 of the Health and Safety Code is repealed.
125315. (a) A physician and surgeon or other health care
provider delivering fertility treatment shall provide his or her
patient with timely, relevant, and appropriate information to allow
the individual to make an informed and voluntary choice regarding the
disposition of any human embryos remaining following the fertility
treatment. The failure to provide to a patient this information
constitutes unprofessional conduct within the meaning of Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code.
(b) Any individual to whom information is provided pursuant to
subdivision (a) shall be presented with the option of storing any
unused embryos, donating them to another individual, discarding the
embryos, or donating the remaining embryos for research. When
providing fertility treatment, a physician and surgeon or other
health care provider shall provide a form to the male and female
partner, or the individual without a partner, as applicable, that
sets forth advanced written directives regarding the disposition of
embryos. This form shall indicate the time limit on storage of the
embryos at the clinic or storage facility and shall provide, at a
minimum, the following choices for disposition of the embryos based
on the following circumstances:
(1) In the event of the death of either the male or female
partner, the embryos shall be disposed of by one of the following
actions:
(A) Made available to the living partner.
(B) Donation for research purposes.
(C) Thawed with no further action taken.
(D) Donation to another couple or individual.
(E) Other disposition that is clearly stated.
(2) In the event of the death of both partners or the death of a
patient without a partner, the embryos shall be disposed of by one of
the following actions:
(A) Donation for research purposes.
(B) Thawed with no further action taken.
(C) Donation to another couple or individual.
(D) Other disposition that is clearly stated.
(3) In the event of separation or divorce of the partners, the
embryos shall be disposed of by one of the following actions:
(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.
(F) Other disposition that is clearly stated.
(4) In the event of the partners' decision or a patient's
decision who is without a partner, to abandon the embryos by request
or a failure to pay storage fees, the embryos shall be disposed of by
one of the following actions:
(A) Donation for research purposes.
(B) Thawed with no further action taken.
(C) Donation to another couple or individual.
(D) Other disposition that is clearly stated.
(c) A physician and surgeon or other health care provider
delivering fertility treatment shall obtain written consent from any
individual who elects to donate embryos remaining after fertility
treatments for research. For any individual considering donating the
embryos for research, to obtain informed consent, the health care
provider shall convey all of the following to the individual:
(1) A statement that the early human embryos will be used to
derive human pluripotent stem cells for research and that the cells
may be used, at some future time, for human transplantation research.
(2) A statement that all identifiers associated with the embryos
will be removed prior to the derivation of human pluripotent stem
cells.
(3) A statement that donors will not receive any information
about subsequent testing on the embryo or the derived human
pluripotent cells.
(4) A statement that derived cells or cell lines, with all
identifiers removed, may be kept for many years.
(5) Disclosure of the possibility that the donated material may
have commercial potential, and a statement that the donor will not
receive financial or any other benefits from any future commercial
development.
(6) A statement that the human pluripotent stem cell research is
not intended to provide direct medical benefit to the donor.
(7) A statement that early human embryos donated will not be
transferred to a woman's uterus, will not survive the human
pluripotent stem cell derivation process, and will be handled
respectfully, as is appropriate for all human tissue used in
research.
SEC. 6. Section 125320 of the Health and Safety Code is repealed.
125320. (a) A person may not knowingly, for valuable
consideration, purchase or sell embryonic or cadaveric fetal tissue
for research purposes pursuant to this chapter.
(b) For purposes of this section, "valuable consideration" does
not include reasonable payment for the removal, processing, disposal,
preservation, quality control, storage, transplantation, or
implantation of a part.
(c) Embryonic or cadaveric fetal tissue may be donated for
research purposes pursuant to this chapter.
SEC. 7. Chapter 1.5 (commencing with Section 125325) of Part 5.5
of Division 106 of the Health and Safety Code is repealed.
SEC. 8. Division 106.5 (commencing with Section 126000) is added
to the Health and Safety Code, to read:
DIVISION 106.5. Assisted Reproductive Technology
PART 1. General Provisions
126000. (a) This act shall be known as, and may be referred to
as, the Model Act Governing Assisted Reproductive Technology.
(b) For purposes of this division, the following definitions shall
apply:
(1) "ART program" means ART providers, ART clinics, and ART
storage facilities.
(2) "ART storage facility" means a licensed facility that stores
reproductive, biological, or genetic material used in assisted
reproductive technology.
(3) "Assisted conception" means the formation of a human embryo
with the intent to produce a live birth.
(4) "Assisted reproduction" means a method of causing pregnancy
through means other than by sexual intercourse. The term includes,
but is not limited to, all of the following:
(A) Intrauterine insemination.
(B) Donation of eggs.
(C) Donation of embryos.
(D) In vitro fertilization and transfer of embryos.
(E) Intracytoplasmic sperm injection.
(5) "Assisted reproductive technology" or "ART" means any medical
or scientific intervention, including assisted reproduction, provided
for the purpose of achieving live birth that results from assisted
conception.
(6) "Child" means a live born individual of any age whose
parentage may be determined under this act or other law.
(7) "Collaborative reproduction" means any assisted reproduction
in which an individual other than an intended parent provides genetic
material or agrees to act as a gestational carrier. It shall
include, but is not limited to, attempts by intended parents to
create a child through means of a gestational agreement, with or
without the involvement of donors, or assisted reproduction involving
donors where a gestational carrier is not used.
(8) "Compensation" means payment of valuable consideration for
time, effort, pain, or risk to health in excess of reasonable medical
and ancillary costs.
(9) "Consultation" means an initial in-person meeting with a
licensed mental health professional for the purpose of educating the
participants about the effects and potential consequences of their
participation in an ART procedure.
(10) "Counseling" means additional consultations, after the
initial consultation, for the purpose of advising and supporting the
participant during the implementation of an ART procedure.
(11) "Donor" means an individual who produces eggs or sperm used
for assisted reproduction, whether or not for consideration. The term
does not include any of the following:
(A) An intended parent who provides gametes to be used for
assisted reproduction.
(B) A woman who gives birth to a child by means of assisted
reproduction.
(C) A parent or an intended parent as determined pursuant to the
Uniform Parentage Act (Part 3 (commencing with Section 7600) of
Division 12 of the Family Code).
(12) "Embryo" means a cell or group of cells containing a diploid
complement of chromosomes or group of such cells, not a gamete or
gametes, that has the potential to develop into a live born human
being if transferred into the body of a woman under conditions in
which gestation may be reasonably expected to occur.
(13) "Embryo donor" means an individual or individuals with
dispositional control of an embryo who provide the embryo to another
for gestation and relinquish all present and future parental and
inheritance rights and obligations to a resulting individual or
individuals.
(14) "Embryo transfer" means all medical and laboratory procedures
that are necessary to effectuate the transfer of an embryo into the
uterine cavity.
(15) "Experimental procedure" means a procedure for which there is
inadequate evidence of safety and efficacy.
(16) "Gamete" means a cell containing a haploid complement of DNA
that has the potential to form an embryo when combined with another
gamete. Sperm and eggs are gametes. A gamete may consist of nuclear
DNA from one human being combined with the cytoplasm, including
cytoplasmic DNA, of another human being.
(17) "Gamete provider" means an individual who provides sperm or
eggs for use in assisted reproduction.
(18) "Gestational agreement" is a contract between intended
parents and a gestational carrier intended to result in a live birth.
(19) "Gestational carrier" means an adult woman, not an intended
parent, who enters into a gestational agreement to bear a child,
whether or not she has any genetic relationship to the resulting
child. Both a traditional surrogate, a woman who undergoes
insemination and fertilization of her own eggs in vitro, and a
gestational surrogate, a woman into whom an embryo is transferred or
formed using eggs other than her own, are gestational carriers.
(20) "Infertility treatment" means any medical treatment
reasonable and necessary for an intended parent to achieve a live
birth.
(21) "Intended parent" is an individual, married or unmarried, who
manifests the intent, as provided in this act, to be legally bound
as the parent of a child resulting from assisted or collaborative
reproduction.
(22) "In vitro fertilization" means the formation of a human
embryo outside the human body.
(23) "Legal spouse" means an individual married to another, or who
has a legal relationship to another that this state accords rights
and responsibilities equal to, or substantially equivalent to, those
of marriage.
(24) "Medical evaluation" means an evaluation and consultation by
a physician.
(25) "Medical information" means individually identifiable health
information obtained by a health care provider in the course of
medical evaluation, consultation, diagnosis, or treatment.
(26) "Mental health evaluation" means an evaluation and
consultation of a mental health professional meeting the requirements
of subdivision (c) of Section 126008.
(27) "Oocyte" means a female egg cell or egg cell of a human
female.
(28) "Parent" means an individual who has established a
parent-child relationship under this act or other law.
(29) "Parent-child relationship" means the legal relationship
between a child and a parent of the child. The term includes the
mother-child relationship and the father-child relationship.
(30) "Participant" means an individual who provides a biological
or genetic component of assisted reproduction, an intended parent,
and the spouse of an intended parent or gestational carrier.
Gestation is a biological component within the meaning of this
definition.
(31) "Patient" means an individual using assisted reproductive
technology under the direction of a provider and shall include an
intended parent.
(32) "Physician" means an individual licensed to practice medicine
as a physician and surgeon pursuant to Chapter 5 (commencing with
Section 2000) of Division 2 of the Business and Professions Code.
(33) "Posthumous conception" means the transfer of an embryo or
gametes with the intent to produce a live birth after a gamete
provider has died.
(34) "Preservation" or "preserve" means maintaining organ, tissue,
or cellular utility, including, but not limited to, the freezing and
storing thereof through cryopreservation, for use in assisted
conception.
(35) "Provider" means an individual who is licensed to administer
health care, who is qualified under this act to provide ART services,
and who has a provider-patient relationship with a participant,
including all medical, psychological, or counseling professionals. A
professional corporation or corporation licensed by the state to
provide health care of which a provider is an owner or employee is
also a provider.
(36) "Record" means information inscribed in a tangible medium or
stored in an electronic or other medium that may be accessed in
perceivable form.
(37) "Retrieval" means the procurement of eggs or sperm from a
gamete provider.
(38) "Time of transfer" means the time at which an embryo is
transferred into the body of a woman with the intent to produce live
birth.
(39) "Transfer" means the placement of an embryo or gametes into
the body of a woman with the intent to achieve pregnancy and live
birth.
126001. (a) A person may not knowingly, for valuable
consideration, purchase or sell embryonic or cadaveric fetal tissue
for research purposes.
(b) For purposes of this section, "valuable consideration" does
not include reasonable payment for removal, processing, disposal,
preservation, quality control, storage, transplantation, or
implantation.
(c)
Embryonic or cadaveric fetal tissue may be donated for research
purposes pursuant to this division.
PART 2. Informed Consent
126002. (a) Informed consent shall be provided by all
participants prior to the commencement of assisted reproduction.
(b) Informed consent requires that all of the following be
provided to all participants orally and in a record that meets the
requirements of Section 126003:
(1) A statement that the patient retains the right to withhold or
withdraw consent at any time prior to transfer of gametes or embryos
without affecting the right to future care or treatment or risking
the loss or withdrawal of any program benefits to which the patient
would otherwise be entitled.
(2) A statement that the donor's right to withhold or withdraw
consent to fertilization terminates upon retrieval of his or her
gametes, subject only to the terms of a prior agreement in a record
pursuant to Part 5 (commencing with Section 126011).
(3) A description of the known and potential risks, consequences,
and benefits of ART. This description shall include the inherent risk
of embryo loss due to aneuploidy, failure of implantation, or
thawing, and the risks associated with the use of hormones and other
drugs that may be used, egg retrieval, multiple pregnancies, and
selective reduction. The patient shall be informed that there may be
foreseen or unforeseen legal consequences and that it is advisable to
seek legal counsel.
(4) A description of alternative therapies and treatments,
including adoption and natural cycling.
(5) A statement that all existing confidentiality protections
apply, and information about what these confidentiality protections
are.
(6) A guarantee that a patient has access to all of his or her
medical information to the extent the law allows. The patient may
have to pay a reasonable fee for copies of the record.
(7) Disclosure that intended parents have a right to access a
summary of medical and psychological information about donors and
gestational carriers as described in this division.
(8) A statement that the release of participant-identifiable
information, including images, shall not occur without the consent of
the participant in a record.
(9) A statement that the intended parent or parents, not the
clinic or storage facility, have the ultimate right to possession and
control of their embryos, subject to a prior agreement in a record
or as provided in Section 126003.
(10) A statement of the need for intended parents to agree, in
advance, who shall acquire the right to possession and control of the
embryos or gametes in the event of marriage dissolution, death of
one or both of them, or subsequent disagreement over disposition in
compliance with the provisions of Section 126011.
(11) The policy of the provider regarding the number of embryos
transferred and any limitation on the number of embryos transferred,
as well as the existence of national guidelines as published by the
American Society for Reproductive Medicine (ASRM) and the Society for
Assisted Reproductive Technologies (SART).
(12) A statement of the need for participants to decide whether
the embryos or gametes can be used for purposes other than assisted
reproduction.
126003. (a) The provider shall document informed consent in a
record for each participant that meets all of the following criteria:
(1) Be in plain language.
(2) Be dated and signed by the provider and by the participant.
(3) Include an agreement clarifying, to the extent possible,
parental rights of all participants if collaborative reproduction is
used. Participants not named are presumed to have no parental rights
or duties.
(4) State that the disclosures required by Section 126002 have
been made.
(5) Specify the length of time that consent remains valid.
(6) Advise the party signing the informed consent record of the
right to receive a copy of the record.
(b) Except in an emergency, the record or records shall be signed
by the parties before informed consent is valid or the commencement
of assisted reproduction.
(c) The record required by this section shall become part of the
participant's medical record.
126004. (a) Prior to each retrieval and transfer, a provider
shall disclose to all participants who have not waived that right in
a record the following possible dispositions of embryos, together
with a statement as to which of the following are allowed under
applicable law:
(1) Storage, including length of time, costs, and location.
(2) Transfer.
(3) Donation to one of the following:
(A) A known individual for transfer.
(B) An unknown individual for transfer.
(C) For scientific or clinical research, including the institution
conducting the research and the intended nature of the research, if
known, subject to an agreement in the record as provided in Section
126003.
(4) Destruction.
(b) A provider shall not be required to offer all possible
dispositions, but the provider shall inform the patient that other
providers may offer other options and that the patient has the right
to transport embryos to other providers. The failure to provide a
patient with this information constitutes unprofessional conduct
within the meaning of Chapter 5 (commencing with Section 2000) of
Division 2 of the Business and Professions Code.
(c) Before each transfer cycle, the provider shall provide each
intended parent with all of the following information in a record,
where applicable:
(1) Method used to achieve fertilization and the results of semen
analysis, including, but not limited to, motility, count, and
morphology.
(2) Number of eggs retrieved.
(3) For the retrieval and transfer of fresh embryos: number
created, number viable for transfer, number preserved, quality of
each embryo transferred, and quality of each embryo preserved.
(4) For the retrieval and transfer of preserved embryos: number of
embryos thawed, number of embryos viable for transfer after thawing,
and quality of the embryos transferred.
(5) A statement that failure to adhere to drug administration
schedules may affect the outcome of the treatment.
(d) If additional information is learned through medical or
psychological evaluation or retrieval of gametes that is relevant to
the donor's health, that information shall be made available to the
donor if the donor has requested it. The provider shall disclose to a
donor that the information can be made available upon request.
(e) Where relevant, a provider shall disclose, prior to retrieval,
to participants other than donors, in a record, the known risks of
multiple births, including the positive and negative factors involved
in selective reduction. A provider shall disclose, prior to
retrieval, to individuals undergoing egg retrieval the known risks of
multiple retrievals.
(f) A provider shall not accept from a participant an embryo
designated for research under Section 126011, and the provider shall
disclose all of the following:
(1) The existence of any financial or professional relationship
with the entity accepting the embryo for research.
(2) A statement that the early human embryos will be used to
derive human pluripotent stem cells for research and that the cells
may be used, at some future time, for human transplantation research.
(3) A statement that all identifiers associated with the embryos
will be removed prior to the derivation of human pluripotent stem
cells.
(4) A statement that donors will not receive any information about
subsequent testing on the embryo or the derived human pluripotent
cells.
(5) A statement that derived cells or cell lines, with all
identifiers removed, may be kept for many years.
(6) Disclosure of the possibility that the donated material may
have commercial potential, and a statement that the donor will not
receive financial or any other benefits from any future commercial
development.
(7) A statement that the human pluripotent stem cell research is
not intended to provide direct medical benefit to the donor.
(8) A statement that early human embryos donated will not be
transferred to a woman's uterus, will not survive the human
pluripotent stem cell derivation process, and will be handled
respectfully, as is appropriate for all human tissue used in
research.
126005. (a) Individuals from whom oocytes are retrieved shall be
informed, prior to the retrieval, of the health risks and adverse
effects of ovarian stimulation and retrieval. Women undergoing
transfer shall be informed of the health risks of that process.
Health risk disclosures shall include, where relevant, the following
information regarding the fertility drugs to be used:
(1) Known side effects.
(2) Alternative drug therapies and natural cycling.
(3) The process of drug administration.
(4) Whether the drug being used is approved by the federal Food
and Drug Administration for this purpose.
(b) The person or entity posting an advertisement seeking oocyte
donation associated with the delivery of fertility treatment that
includes assisted oocyte production and a financial payment or
compensation of any kind shall include the following notice in a
clear and conspicuous manner:
"Egg donation involves a screening process. Not all potential egg
donors are selected. Not all selected egg donors receive the monetary
amounts or compensation advertised. As with any medical procedure,
there may be risks associated with human egg donation. Before an egg
donor agrees to begin the egg donation process and signs a legally
binding contract, she is required to receive specific information on
the known risks of egg donation. Consultation with your doctor prior
to entering into a donor contract is advised."
(c) A summary pertaining to oocyte donation procedures, shall be
provided, as required pursuant to subdivision (a), to all potential
egg donors before signing a legally binding contract to become an
oocyte donor, or beginning any oocyte donation procedures, as part of
compliance with the informed consent requirements.
(d) Persons or entities that certify compliance with the American
Society for Reproductive Medicine (ASRM) guidelines by registering
with ASRM are exempt from the notice requirements set forth in
subdivision (b). Use of the exemption when the guidelines are
violated shall constitute false advertising.
(e) Donors recruited through the advertisement shall undergo the
same disclosure, counseling, and informed consent process as donors
recruited by other means.
(f) This section shall not apply to oocyte donors undergoing
assisted oocyte production or any alternative method of ovarian
retrieval for research or for the development of medical therapies as
covered by Chapter 2 (commencing with Section 125330) of Part 5.5 of
Division 106.
126006. (a) A donor of gametes or embryos may condition donation
on a reasonable assurance of anonymity so long as nonidentifying
health information is provided in accordance with the requirements
set forth elsewhere in this act.
(b) A donor who has given permission for release of identifying
health or other information shall not revoke that permission after
transfer of the donated gametes or of embryos created with the
donated gametes.
(c) A donor of gametes or embryos may condition donation on other
reasonable use or disposition restrictions, as set forth in a record
prior to donation.
126007. (a) Gametes or embryos shall not be collected from
deceased or incompetent individuals or from preserved tissues unless
consent in a record was executed prior to death or incompetency by
the individual from whom the gametes or embryos are to be collected
or the individual's authorized fiduciary who has express
authorization from the principal to so consent.
(b) In the event of an emergency where the required consent is
alleged but unavailable and where, in the opinion of the treating
physician, loss of viability would occur as a result of delay, and
where there is a genuine question as to the existence of consent in a
record, an exception is permissible.
(c) If gametes or embryos are collected pursuant to subdivision
(b), transfer of gametes or of an embryo is expressly prohibited
unless approved by a court. Absence of a record as described in
subdivision (a) shall constitute a presumption of no consent.
126008. A storage facility for embryos or gametes is not liable
for destruction or loss of embryos due to natural disaster, act of
God, or war.
PART 3. Mental Health Consultation and Additional Counseling
126009. (a) All participants known to the ART provider must
undergo a mental health consultation in accordance with regulations
adopted by the department. Providers of the consultation must
demonstrate contemporaneous knowledge and consideration of the most
recently published guidelines of the ASRM and SART. The results of
this consultation shall not be used to arbitrarily deny an intended
parent the right to procreate.
(b) During the consultation, the provider must offer additional
counseling to each participant. The offer of counseling is mandatory,
but the participant's acceptance of additional counseling is
voluntary.
(c) For purposes of this part, "mental health professional" means
an individual who meets all of the following criteria:
(1) Holds a masters or doctoral degree in the fields of
psychiatry, psychology, counseling, social work, psychiatric nursing,
marriage and family therapy, or a similar discipline.
(2) Is licensed in the state to practice in the mental health
field.
(3) Where reasonably possible, has received training in, or has
knowledge of, reproductive physiology; the testing, diagnosis, and
treatment of infertility; or the psychological issues in infertility
and collaborative reproduction. If there are questions about
inherited or genetic disorders, the counselor must refer the
participant to a qualified genetic counselor.
126010. (a) An ART procedure that involves the transfer of donor
gametes or embryos to a female intended parent, or of gametes or
embryos to a gestational carrier, shall not be initiated or performed
until all of the following conditions are met:
(1) All participants made known to the ART provider have been
offered mental health counseling following the initial consultation
as provided for in Section 126008.
(2) The mental health professional has prepared and delivered to
the medical provider a statement in a record that he or she has met
with all applicable participants.
(3) If applicable, a prospective gestational carrier has undergone
a mental health evaluation to determine her suitability to
participate in collaborative reproduction.
(4) The intended parent or parents have undergone a mental health
evaluation to determine their suitability to participate in
collaborative reproduction. This evaluation is not intended to be an
evaluation of the intended parent's suitability to parent.
(b) It shall be conclusively presumed that a participant has had
the opportunity to receive additional counseling from a mental health
professional pursuant to Section 126008 if that individual signs a
statement containing the following language:
"I understand that counseling is recommended for all participants
in collaborative reproduction and that counseling is a separate
process from any consultation that Provider] has required me to
complete. Provider] has given me the opportunity to meet with and
receive counseling from a mental health professional with specialized
knowledge of the social and psychological impact of assisted and
collaborative reproduction on participants. I understand that I may
choose any mental health professional who meets these requirements,
and that I am not required to choose one recommended by this
treatment facility."
(c) Prior to a transfer of gametes or embryos and prior to
execution of a collaborative reproduction agreement, an intended
parent shall be informed that, upon the intended parent's request,
the mental health professional's recommendation regarding the
assessment of a participant for collaborative reproduction shall be
provided by the ART provider.
PART 4. Privacy and Confidentiality
126011. All individually identifiable information obtained or
created in the course of ART treatment is medical information and
subject to medical record confidentiality requirements.
PART 5. Embryo Transfer or Disposition
126012. (a) The intended parents shall execute a binding
agreement in a record that includes all of the following prior to
embryo creation:
(1) Intended use and disposition of embryos.
(2) The use and disposition of preserved embryos in the event of
divorce of intended parents, if married; illness, incapacity, or
death of one or both intended parents; or other change of
circumstances, including, but not limited to, separation or
estrangement.
(3) Whether an intended parent may use the embryos in the event of
divorce, illness, incapacity, or death of the other intended parent.
(4) The time at which, and conditions under which, preserved
embryos will be deemed abandoned and the policy of the clinic and
storage facility as to the disposition of preserved embryos.
(b) The agreement required pursuant to subdivision (a) may be
amended at any time prior to transfer of an embryo or the death of
either intended parent.
(c) All agreements shall include a permanent address and permanent
identifier of the intended parents.
(d) A party to an embryo storage or disposition agreement may
withdraw his or her consent to the terms of the agreement in a
record. In the event of a subsequent disagreement between intended
parents, wherein one intended parent no longer wishes to use stored
embryos as previously agreed, after receipt of notice in a record by
the other intended parent and by the clinic or storage facility of
that individual's intent to avoid conception, an intended parent
shall not transfer the embryos into the body of any woman with the
intent to create a child. No prior agreement to the contrary shall be
enforceable.
(e) In the event that a transfer occurs after receipt of notice in
a record of that individual's intent to avoid gestation as set forth
in subdivision (d), that intended parent shall not be the parent of
a resulting child.
(f) Following the death of an intended parent who has previously
consented in a record to posthumous use of cryopreserved gametes or
embryos, the surviving intended parent may discard, donate, or use
the embryos for his or her own parenting purposes. An individual born
as a result of embryo transfer after the death of an intended parent
or gamete provider is not the child of that gamete provider or
intended parent unless the deceased individual consented, in a record
that meets the requirements of Section 126003, that if assisted
reproduction were to occur after death, the deceased individual would
be a parent of the child.
(g) A provider that transfers or creates any embryos following the
death of an intended parent shall obtain and keep a permanent record
of the consent required pursuant to in subdivision (f).
(h) If a binding agreement is not executed prior to embryo
creation, the intended parents may execute an agreement consistent
with this section that will be enforceable on a prospective basis.
126013. Intended parents may choose to donate their unused
embryos for either of the following purposes, subject only to the
limitations set forth in a record prior to donation pursuant to
Section 126003:
(a) Donation to another patient, either known or anonymous.
Donation to known individuals shall be done only for the purpose of
the recipient attempting to create a child and become that child's
parent.
(b) Donation for approved research, the nature of which may be
specifically set forth in the informed consent record and which will
require the approval of an institutional review board. No research
shall be permitted that is not within the scope of the informed
consent of the recorded agreement. This agreement shall be modified
only with the consent of both gamete providers and of the intended
parents. After a gamete provider has died, that individual's consent
shall endure and shall be irrevocable.
126014. Donors shall be screened prior to donation in compliance
with Section 1644.5. Permanent records of the donation shall be
maintained.
126015. (a) An embryo is deemed to have been abandoned only if
all of the following conditions are met:
(1) At least five years have elapsed since creation of the embryo
unless the participants select another time by agreement as provided
in paragraph (4) of subdivision (a) of Section 116011.
(2) A diligent attempt is made to notify the interested
participants, as well any provider who contracted for storage, that
the embryo is to be deemed to be abandoned. This attempt shall
include, but not be limited to, notice by certified mail, or
equivalent trackable medium, to each interested participant's
permanent address or last known address, and shall require a period
of not less than 90 days to elapse before any disposition action is
taken.
(3) The interested participants have acknowledged that they have
been informed of the provisions in paragraphs (1) and (2) in a record
executed prior to acquisition by the storage facility.
(b) Disposition of an embryo deemed to be abandoned pursuant to
subdivision (a) shall be in accordance with the most recent recorded
agreement between participants and the storage facility. If there is
no agreement in a record, or if no agreement in a record can be found
after a diligent search, disposition shall be as ordered by a court
of competent jurisdiction.
(c) A storage facility that disposes of embryos in compliance with
this division is immune from civil and criminal liability arising
from the disposition of the embryos, absent criminal intent, gross
negligence, or intentional misconduct.
126016. When no agreement exists pursuant to this part, the
following shall control the disposition of the embryos:
(a) In the event of the death of either partner, the embryos shall
be disposed of by one of the following actions:
(1) Made available to the living partner.
(2) Donated for research purposes.
(3) Thawed with no further action taken.
(4) Donation to another couple or individual.
(b) In the event of the death of both partners or the death of a
patient without a partner, the embryos shall be disposed of by one of
the following actions:
(1) Donation for research purposes.
(2) Thawed with no further action taken.
(3) Donation to another couple or individual.
(c) In the event of separation or divorce of the partners, the
embryos shall be disposed of by one of the following actions:
(1) Made available to the female partner.
(2) Made available to the male partner.
(3) Donation for research purposes.
(4) Thawed with no further action taken.
(5) Donation to another couple or individual.
(d) In the event of the partners' decision or a patient's decision
who is without a partner, to abandon the embryos, the embryos shall
be disposed of by one of the following actions:
(1) Donation for research purposes.
(2) Thawed with no further action taken.
(3) Donation to another couple or individual.
126017. (a) Transportation of embryos is the responsibility of
the individual or individuals requesting the transfer.
(b) Except as provided in Part 7, unless the storage facility has
requested or required transport, it is immune from all civil and
criminal liability incurred as a result of the transport, absent
criminal intent, gross negligence, or intentional misconduct.
PART 6. Quality Assurance
126018. The ART program shall ensure the quality of the services
of ART providers, clinics, and storage facilities by developing and
complying with at least the following quality assurance measures:
(a) The ART program shall document that senior and supervisory
staff are adequately trained, including formal training in genetics.
Documentation shall also include staff participation in laboratory
training programs and regular updating of staff skills and knowledge.
(b) The ART program shall develop, implement, and regularly test
backup and contingency plans for cryopreservation systems, computer
systems, and records.
(c) The ART program shall participate in proficiency testing and
on-site inspection, in compliance with the requirements for
certification adopted by the department. If genetic diagnostic
services are provided, the program shall participate in the College
of American Pathologists and the American College of Medical Genetics
genetic proficiency testing programs.
126019. (a) The department may establish a donor and
collaborative reproduction registry for the purpose of maintaining
contact, medical, and psychosocial information about donors,
gestational carriers, and children born as a result of ART, or to
benefit the public health. If the department does so, the registry
shall incorporate, at a minimum, the following elements:
(1) Procedures to allow the disclosure of nonidentifying
information, while protecting the anonymity of donors.
(2) Procedures to allow the disclosure of identifying information
about participants only if the consent of all parties affected is
obtained prior to the release of the information.
(3) Medical and genetic information and updated current health
information, including change in health status, about the donor.
Donors or providers are not required to update the information unless
required by written agreement.
(4) Procedures to allow disclosure of nonidentifying medical and
psychosocial information to the resulting child.
(5) Policies as to whether a resulting child is authorized to
contact a program.
(6) All records involving ART until the resulting child has
reached 40 years of age.
(b) In lieu of establishing a registry pursuant to subdivision
(a), if a national registry that meets the above requirements is
available, the department may approve that registry for use for
purposes of this part.
(c) If the department establishes a registry pursuant to
subdivision (a) or approves a national registry pursuant to
subdivision (b), a health care provider shall not utilize another
registry that fails to comply with the requirements of subdivision
(a), except as may be otherwise required or permitted by federal or
state law.
126020. (a) The ART provider shall do all of the following:
(1) Maintain a permanent address for contact by patients,
resulting children, and participants.
(2) Participate in a donor and collaborative
reproduction registry, if established or approved pursuant to Section
126017, by collecting medical and genetic information and updated
current health information, including change in health status of the
donor.
(3) Maintain an accurate record of the disposition of all gametes
and embryos.
(4) Maintain all records in compliance with state and federal law.
(b) Medical information may be disclosed to an interested party or
resulting child only if an authorization is signed pursuant to Part
2 (commencing with Section 126002) and Part 4 (commencing with
Section 126010).
(c) The ART program may disclose aggregate, nonidentifiable data
for quality assurance and reporting requirements, for any of the
following limited purposes:
(1) Ensuring a standard for the maintenance of records on
laboratory tests and procedures performed, including safe sample
disposal.
(2) Maintaining records on personnel and facilities, including,
but not limited to, schedules of preventive maintenance.
(3) Ensuring minimum qualification standards for personnel.
126021. The ART program shall do all of the following:
(a) Conduct medical testing for sexually transmitted diseases in
gamete providers, whether donors or intended parents, and gestational
carriers in compliance with the laws and regulations of or applying
to appropriate governmental regulatory authorities.
(b) Conduct medical screening of gamete and embryo donors for
genetic disorders. The extent of the screening shall be determined by
the department, which may adopt the guidelines established by the
ASRM and SART. In the event that no guidelines have been developed,
the department shall set standards in accordance with accepted
standards of medical practice for ART providers.
(c) Establish procedures for the proper labeling of embryos and
gametes.
PART 7. Enforcement
126022. (a) The failure of a provider to comply with this
division shall constitute unprofessional conduct and may be reported
to the controlling licensing authority.
(b) In addition to other remedies available at law, a participant
whose ART information has been used or disclosed in violation of this
division, and who has sustained economic loss or personal or
emotional injury therefrom, may recover compensatory damages,
reasonable attorney's fees, and the costs of litigation.
(c) Failure to account for all embryos, misuse of embryos, theft
of embryos, or unauthorized disposition of embryos shall subject a
provider or an ART storage facility to criminal and civil penalties,
including punitive damages, and reasonable legal fees to the
prevailing party.
126023. (a) Licensed providers rendering services in compliance
with practice and ethical guidelines, contemporaneous to the time of
alleged breach of the standard of care, or applicable state or
federal regulations or statutes are presumed to have rendered care
within accepted standards of care.
(b) The presumption in subdivision (a) is rebuttable only upon a
showing that an issue relating to a standard of care not covered in
the practice and ethical guidelines or regulatory or statutory
standards, as described in subdivision (a), exists, and upon a
finding that there has been a breach of the standard of care on that
issue.
(c) No cause of action initiated more than six years after the
birth of a child from ART, or more than two years after injury
resulting from ART could reasonably have been detected, whichever is
greater, shall be valid.
SEC. 9. Section 10119.6 of the Insurance Code is amended to read:
10119.6. (a) On and after January 1, 1990, every insurer issuing,
renewing, or amending a policy of disability insurance
which that covers hospital, medical, or surgical
expenses on a group basis shall offer coverage for the
treatment of infertility treatment , except
in vitro fertilization, under those terms and conditions as may be
agreed upon between the group policyholder and the insurer. Every
insurer shall communicate the availability of that coverage to all
group policyholders and to all prospective group policyholders with
whom they are it is negotiating.
(b) (1) For purposes of this
section subdivision (a), until January 1, 2012 ,
"infertility" means either (1) the presence of a
demonstrated condition recognized by a licensed physician and surgeon
as a cause of infertility, or (2) the inability
to conceive a pregnancy or to carry a pregnancy to a live birth after
a year or more of regular sexual relations without contraception.
"Treatment for
(2) For purposes of this section:
(A) "Treatment of infertility"
means procedures consistent with established medical practices in the
treatment of infertility by licensed physicians and surgeons
including, but not limited to, diagnosis, diagnostic tests,
medication, surgery, and gamete intrafallopian transfer. "In
(B) "In vitro fertilization"
means the laboratory medical procedures involving the actual in vitro
fertilization process.
(c) On and after January 1, 2012, with respect to every health
insurer covered by subdivision (a), the following provisions apply:
(1) "Infertility" means any of the following:
(A) As a result of a disease or condition that causes abnormal
function of the reproductive system, the inability to conceive after
attempts at conception by unprotected sexual intercourse have been
made for at least one year or the inability to sustain a pregnancy to
live birth.
(B) The presence of another condition recognized by accepted
medical standards as a cause of the inability to achieve or sustain a
pregnancy to live birth.
(C) The desire to achieve pregnancy by means other than sexual
intercourse.
(2) Treatment of infertility provided under subdivision (a) may
not be denied on the basis that a person desires to achieve pregnancy
by means other than sexual intercourse, as described in subparagraph
(C) of paragraph (1).
(3) (A) The department may designate, from time to time, and may
amend, a list of assisted reproductive technology procedures and
treatments that are considered to be experimental. Experimental
treatment of infertility is not required coverage under subdivision
(a).
(B) For purposes of this paragraph, "assisted reproductive
technology" means any medical or scientific intervention, including
assisted reproduction, provided for the purpose of achieving live
birth that results from assisted conception. "Assisted conception"
means the formation of a human embryo with the intent to produce a
live birth.
(4) (A) A health insurer that offers treatment of infertility
under subdivision (a) shall provide notice to each insured on the
policy of the specific coverage provided by the policy.
(B) The notice shall be prominently positioned in any literature,
application, or policy description made available or distributed by
the insurer to insureds.
(5) A health insurer that offers treatment of infertility under
subdivision (a) may require that any physician and surgeon
participating in the treatment of infertility shall be one of the
following:
(A) Board certified in obstetrics and gynecology by the American
Board of Obstetrics and Gynecology and have a practice comprised
substantially of infertility cases.
(B) Board certified in both obstetrics and gynecology and in
reproductive endocrinology by the American Board of Obstetrics and
Gynecology, with a practice comprised substantially of infertility
cases.
(C) Board certified in both andrology and urology by the American
Board of Urology.
(c)
(d ) Nothing in this section shall be
construed to deny or restrict in any way any existing right or
benefit to coverage and treatment of infertility under an existing
law, plan or policy.
(d)
(e ) Nothing in this section shall be
construed to require any employer that is a religious organization to
offer coverage for forms of treatment of infertility in a manner
inconsistent with the religious organization's religious and ethical
principles.
(e)
(f ) Nothing in this section shall be
construed to require any insurer, which is a subsidiary of an entity
whose owner or corporate member is a religious organization, to offer
coverage for treatment of infertility in a manner inconsistent with
that religious organization's religious and ethical principles.
For purposes of this subdivision, "subsidiary" of a specified
corporation means a corporation more than 45 percent of the voting
power of which is owned directly, or indirectly through one or more
subsidiaries, by the specified corporation.
(f)
(g ) This section applies to every
disability insurance policy which that
is issued, amended, or renewed to residents of this state regardless
of the situs of the contract.
SEC. 10. Section 10119.65 is added to the Insurance Code, to read:
10119.65. (a) On and after January 1, 2012, every health
insurance policy that is issued, amended, renewed, or delivered that
provides coverage for the treatment of infertility on an individual
basis shall be governed by the definitions and requirements under
this section.
(b) For purposes of this section, the following definitions shall
apply:
(1) "Assisted reproductive technology" means any medical or
scientific intervention, including assisted reproduction, provided
for the purpose of achieving live birth that results from assisted
conception. "Assisted conception" means the formation of a human
embryo with the intent to produce a live birth.
(2) "Infertility" means any of the following:
(A) As a result of a disease or condition that causes abnormal
function of the reproductive system, the inability to conceive after
attempts at conception by unprotected sexual intercourse have been
made for at least one year or the inability to sustain a pregnancy to
live birth.
(B) The presence of another condition recognized by accepted
medical standards as a cause of the inability to achieve or sustain a
pregnancy to live birth.
(C) The desire to achieve pregnancy by means other than sexual
intercourse.
(3) "Treatment of infertility" has the same meaning as set forth
in Section 10119.6.
(c) Treatment of infertility provided under subdivision (a) may
not be denied on the basis that a person desires to achieve pregnancy
by means other than sexual intercourse, as described in subparagraph
(C) of paragraph (2) of subdivision (b).
(d) The department may designate, from time to time, and may
amend, a list of assisted reproductive technology procedures and
treatments that are considered to be experimental. Experimental
treatment of infertility is not required coverage under subdivision
(a).
(e) (1) A health insurer that offers treatment of infertility
under this section shall provide notice to each insured on the policy
of the specific coverage provided by the policy.
(2) The notice shall be prominently positioned in any literature,
application, or policy description made available or distributed by
the insurer to insureds.
(f) A health insurer that offers treatment of infertility under
this section may require that any physician and surgeon participating
in the treatment of infertility shall be one of the following:
(1) Board certified in obstetrics and gynecology by the American
Board of Obstetrics and Gynecology and have a practice comprised
substantially of infertility cases.
(2) Board certified in both obstetrics and gynecology and in
reproductive endocrinology by the American Board of Obstetrics and
Gynecology, with a practice comprised substantially of infertility
cases.
(3) Board certified in both andrology and urology by the American
Board of Urology.
SEC. 11. This act shall not be construed as amending Proposition
71, the California Stem Cell Research and Cures Act, approved by the
voters at the November 2, 2004, general election. Any activities that
are within the jurisdiction of Proposition 71 shall be exempt from
the provisions of this act.
SEC. 12. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.