Florida Senate - 2010         (PROPOSED COMMITTEE BILL) SPB 7062
       FOR CONSIDERATION By the Committee on Judiciary
       590-01086B-10                                         20107062__
    1                        A bill to be entitled                      
    2         An act relating to assisted reproductive technology;
    3         creating s. 742.125, F.S.; creating the “Florida
    4         Assisted Reproductive Technology Act”; amending s.
    5         742.13, F.S.; conforming a cross-reference to changes
    6         made by the act; amending s. 742.14, F.S.; correcting
    7         a cross-reference; creating s. 742.175, F.S.;
    8         providing definitions; providing general requirements
    9         that an assisted reproductive technology agency must
   10         follow; requiring an assisted reproductive technology
   11         agency to establish an escrow account for certain
   12         funds; requiring an assisted reproductive technology
   13         agency to obtain express and informed consent from
   14         participants; prescribing requirements for contracts
   15         for third-party reproductive services; prescribing
   16         requirements for advertising by an assisted
   17         reproductive technology agency; prohibiting an
   18         assisted reproductive technology agency from engaging
   19         in third-party reproductive services if the owner or
   20         operator of the agency has had any arrests, charges,
   21         or convictions related to certain crimes; prohibiting
   22         an assisted reproductive technology agency from using
   23         the services of persons who are not United States
   24         citizens or permanent residents; providing penalties
   25         and remedies; providing for recovery of attorney’s
   26         fees under certain circumstances; providing an
   27         effective date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Section 742.125, Florida Statutes, is created to
   32  read:
   33         742.125Short title.—Sections 742.125-742.175 may be cited
   34  as the “Florida Assisted Reproductive Technology Act.”
   35         Section 2. Section 742.13, Florida Statutes, is amended to
   36  read:
   37         742.13 Definitions.—As used in ss. 742.125-742.175 742.11
   38  742.17, the term:
   39         (1) “Assisted reproductive technology” means those
   40  procreative procedures which involve the laboratory handling of
   41  human eggs or preembryos, including, but not limited to, in
   42  vitro fertilization embryo transfer, gamete intrafallopian
   43  transfer, pronuclear stage transfer, tubal embryo transfer, and
   44  zygote intrafallopian transfer.
   45         (2) “Commissioning couple” means the intended mother and
   46  father of a child who will be conceived by means of assisted
   47  reproductive technology using the eggs or sperm of at least one
   48  of the intended parents.
   49         (3) “Egg” means the unfertilized female reproductive cell.
   50         (4) “Fertilization” means the initial union of an egg and
   51  sperm.
   52         (5) “Gestational surrogate” means a woman who contracts to
   53  become pregnant by means of assisted reproductive technology
   54  without the use of an egg from her body.
   55         (6) “Gestational surrogacy” means a state that results from
   56  a process in which a commissioning couple’s eggs or sperm, or
   57  both, are mixed in vitro and the resulting preembryo is
   58  implanted within another woman’s body.
   59         (7) “Gestational surrogacy contract” means a written
   60  agreement between the gestational surrogate and the
   61  commissioning couple.
   62         (8) “Gamete intrafallopian transfer” means the direct
   63  transfer of eggs and sperm into the fallopian tube prior to
   64  fertilization.
   65         (9) “Implantation” means the event that occurs when a
   66  fertilized egg adheres to the uterine wall for nourishment.
   67         (10) “In vitro” refers to a laboratory procedure performed
   68  in an artificial environment outside a woman’s body.
   69         (11) “In vitro fertilization embryo transfer” means the
   70  transfer of an in vitro fertilized preembryo into a woman’s
   71  uterus.
   72         (12) “Preembryo” means the product of fertilization of an
   73  egg by a sperm until the appearance of the embryonic axis.
   74         (13) “Pronuclear stage transfer” or “zygote intrafallopian
   75  transfer” means the transfer of an in vitro fertilized preembryo
   76  into the fallopian tube before cell division takes place.
   77         (14) “Sperm” means the male reproductive cell.
   78         (15) “Tubal embryo transfer” means the transfer of a
   79  dividing, in vitro fertilized preembryo into the fallopian tube.
   80         Section 3. Section 742.14, Florida Statutes, is amended to
   81  read:
   82         742.14 Donation of eggs, sperm, or preembryos.—The donor of
   83  any egg, sperm, or preembryo, other than the commissioning
   84  couple or a father who has executed a preplanned adoption
   85  agreement under s. 63.213 63.212, shall relinquish all maternal
   86  or paternal rights and obligations with respect to the donation
   87  or the resulting children. Only reasonable compensation directly
   88  related to the donation of eggs, sperm, and preembryos shall be
   89  permitted.
   90         Section 4. Section 742.175, Florida Statutes, is created to
   91  read:
   92         742.175Assisted reproductive technology agencies;
   93  requirements; prohibited acts; penalties; remedies.—
   94         (1)DEFINITIONS.—For purposes of this section, the term:
   95         (a)“Assisted reproductive technology agency” or “agency”
   96  means any organization or individual who provides database,
   97  matching, and other third-party reproductive services on a
   98  commercial or fee basis.
   99         (b)“Donor” means an individual who produces eggs or sperm
  100  used for assisted reproduction, whether or not for
  101  consideration. The term does not include an intended mother or
  102  intended father who provides gametes to be used for assisted
  103  reproduction.
  104         (c)“Participant” means an individual who provides a
  105  biological or genetic component of assisted reproduction, a
  106  commissioning couple, and, if appropriate, the spouse of a
  107  gestational surrogate. Gestation is a biological component
  108  within the meaning of this definition.
  109         (d)“Third-party reproductive services” means services
  110  related to the use of eggs, sperm, or embryos that have been
  111  donated by a third person to enable an infertile couple to
  112  become parents. The term also means services related to
  113  gestational surrogacy arrangements.
  114         (2)GENERAL REQUIREMENTS.—An agency shall:
  115         (a)Require all participants to undergo a mental health
  116  evaluation by a mental health professional licensed under
  117  chapter 490 or chapter 491, and to undergo a subsequent
  118  evaluation every 2 years thereafter as long as the participant
  119  remains in the agency’s database or is still contracting for
  120  services with the agency. The agency shall request from the
  121  mental health professional a written statement that the mental
  122  health professional has met with the participant. The agency
  123  shall retain a copy of the written statement for each
  124  participant. The agency shall require a participant to sign a
  125  release authorizing the agency to obtain the results of the
  126  mental health evaluation.
  127         (b)Require all donors and gestational surrogates to
  128  undergo a medical evaluation by a physician licensed under
  129  chapter 458 or chapter 459, and to undergo a subsequent
  130  evaluation every 2 years thereafter as long as the donor or
  131  gestational surrogate remains in the agency’s database. The
  132  agency shall request from the physician a written statement that
  133  the physician has met with the donor or gestational surrogate.
  134  The agency shall retain a copy of the written statement for each
  135  donor or gestational surrogate. The agency shall require all
  136  donors and gestational surrogates to sign a release authorizing
  137  the agency to obtain the results of the medical evaluation.
  138         (c)Obtain a criminal background check from the Department
  139  of Law Enforcement for each participant, and obtain an updated
  140  criminal background check every 2 years thereafter as long as
  141  the participant remains in the agency’s database or is still
  142  contracting for services with the agency.
  143         1.For donors and gestational surrogates, the agency shall
  144  obtain the criminal background check prior to listing the donor
  145  or gestational surrogate in the agency’s database of potential
  146  donors or gestational surrogates.
  147         2.For a commissioning couple, the agency shall obtain the
  148  criminal background check prior to entering into a contract with
  149  the commissioning couple to provide database, matching, or other
  150  third-party reproductive services.
  151         3.When analyzing and evaluating the criminal background
  152  check to determine whether to include the donor or gestational
  153  surrogate in its database or whether to enter into a contract
  154  with a commissioning couple, the agency shall give particular
  155  emphasis to past activities involving children, including, but
  156  not limited to, child-related criminal offenses or child abuse.
  157         (d)Require a written contract as provided for in
  158  subsection (5) between the commissioning couple and the agency.
  159         (e)Require all gestational surrogacy contracts between the
  160  commissioning couple and the gestational surrogate to be in
  161  writing.
  162         (f)Require the commissioning couple and gestational
  163  surrogate to undergo a legal consultation with independent legal
  164  counsel regarding the terms of the gestational surrogacy
  165  contract and the potential legal consequences of the gestational
  166  surrogacy contract.
  167         (g)Keep and maintain all funds that are to be used for the
  168  compensation of a gestational surrogate or donor in an account
  169  that is separate and apart from the agency’s business accounts
  170  as specified in subsection (3).
  171         (3)SECURITY REQUIREMENTS.—An agency that requires or
  172  receives payment from a participant shall establish and maintain
  173  a mechanism for ensuring that those funds are properly
  174  maintained.
  175         (a)An agency shall establish an escrow account with an
  176  independent escrow agent and deposit into such account all
  177  payments received by the agency from a participant. The agency
  178  is not required to deposit into the escrow account payments
  179  received from a participant which relate to the compensation and
  180  operation of the agency.
  181         (b)The agency shall establish the escrow account in a
  182  Florida bank, Florida savings and loan association, or Florida
  183  trust company, or with an attorney who is a member in good
  184  standing with The Florida Bar.
  185         (c)The escrow agent shall disburse funds from the escrow
  186  account only upon receipt of an affidavit from the agency
  187  specifying the purpose for which the disbursement is requested.
  188  The escrow agent is entitled to rely upon the affidavit of the
  189  agency and has no obligation to independently ascertain the
  190  propriety of the requested disbursement so long as the escrow
  191  agent has no actual knowledge that the affidavit is false in any
  192  respect. The escrow agent shall retain all affidavits received
  193  pursuant to this subsection for 5 years.
  194         (d)The escrow agent shall maintain the account in such a
  195  manner so that it is under the direct supervision and control of
  196  the escrow agent. The escrow agent has a fiduciary duty to each
  197  participant to maintain the escrow account in accordance with
  198  good accounting principles and to release funds from escrow only
  199  in accordance with this subsection. If the escrow agent receives
  200  conflicting demands for the escrowed funds, the escrow agent
  201  shall not disburse any funds and shall immediately notify the
  202  agency and the affected participant of the dispute.
  203         (e)If an agency fails to place funds in an escrow account
  204  within 10 days after receipt of the funds, it is prima facie
  205  evidence of a violation of this subsection.
  206         (4)DISCLOSURE REQUIREMENTS.—An agency shall require all
  207  participants to provide express and informed consent regarding
  208  the proposed treatment, procedure, or process related to third
  209  party reproductive services they are about to undertake.
  210         (a)An agency shall provide to a participant a written
  211  document that is in plain language and includes, at a minimum,
  212  the following:
  213         1.A description of the known and potential risks,
  214  consequences, and benefits of assisted reproductive technology.
  215         2.An explanation that there may be foreseen or unforeseen
  216  legal consequences and that it is advisable to seek independent
  217  legal counsel.
  218         3.A statement that all confidentiality protections apply
  219  to the extent the law allows, and information about what the
  220  confidentiality protections are.
  221         4.A statement that a participant has access to all of his
  222  or her medical information to the extent the law allows. An
  223  agency may charge reasonable fees for copies of the record.
  224         5.Disclosure that a commissioning couple has the right to
  225  access a summary of medical and psychological information about
  226  donors and gestational surrogates.
  227         6.The policy of the agency, if applicable, regarding the
  228  number of embryos transferred and any limitation on the number
  229  of embryos transferred, as well as the existence of national
  230  guidelines as published by the American Society for Reproductive
  231  Medicine and the Society for Assisted Reproductive Technology.
  232         7.Information generally explaining and clarifying parental
  233  rights of all participants.
  234         8.A statement that all disclosures have been made pursuant
  235  to this subsection.
  236         (b)A participant gives express and informed consent by
  237  signing the written document specified in paragraph (a). In
  238  order for the express and informed consent to be valid, the
  239  document must:
  240         1.Be dated and signed by the agency and the participant;
  241         2.Specify the length of time that the consent remains
  242  valid; and
  243         3.Advise the participant signing the document of the right
  244  to receive a copy of it.
  245         (5)CONTRACT REQUIREMENTS.—A contract entered into by an
  246  agency and a participant for third-party reproductive services
  247  must be in writing. The written contract must contain all
  248  provisions, requirements, and prohibitions that are mandated by
  249  this subsection before it is signed by the participant. The
  250  agency shall give a copy of the signed contract to the
  251  participant at the time the participant signs the contract.
  252  Every contract for third-party reproductive services must:
  253         (a)Set forth the participant’s total payment obligation
  254  for services to be received pursuant to the contract.
  255         (b)Specifically provide the agreed-upon payment plan if
  256  the contract calls for payment in installments.
  257         (c)Set forth in specific terms all services being
  258  contracted for.
  259         (d)Prescribe in bold-faced type and under conspicuous
  260  caption all cancellation provisions of the contract.
  261         (e)Specify the length of time that the contract remains
  262  valid and the circumstances under which the contract is
  263  terminated.
  265         (a)An agency shall prominently display on all advertising
  266  and promotional materials a statement that reads: “(NAME OF
  267  AGENCY) is in full compliance with all statutory requirements
  268  pursuant to section 742.175, Florida Statutes.”
  269         (b)All advertising and promotional materials for an agency
  270  must include how many years the agency has been in business and
  271  identify the name of any professional organizations of which the
  272  agency is a member.
  273         (c)An agency may not use advertisements or promotional
  274  materials that tend to deceive prospective participants
  275  concerning the personnel, equipment, services, success rates, or
  276  fee structure of the agency.
  277         (d)For the purposes of this subsection, advertising and
  278  promotional materials include, but are not limited to, marquee,
  279  poster, flier, newspaper, magazine, television, radio,
  280  billboard, or Internet media.
  281         (7)PROHIBITED ACTS.—It is a violation of this section for
  282  an agency to:
  283         (a)Operate in violation of, or fail to comply with, the
  284  requirements of this section.
  285         (b)Engage in third-party reproductive services if the
  286  owner or operator of the agency has had any arrests, charges, or
  287  convictions within the last 5 years for an economic crime or a
  288  crime that directly relates to the practice of his or her
  289  profession, other health-care-related matters, fraud,
  290  embezzlement, violence, moral turpitude, or controlled
  291  substances.
  292         (c)Enlist or use the services of donors or gestational
  293  surrogates who are not United States citizens or permanent
  294  residents.
  295         (8)PENALTIES; REMEDIES.—
  296         (a)A violation of this section is a deceptive and unfair
  297  trade practice and constitutes a violation of the Florida
  298  Deceptive and Unfair Trade Practices Act under part II of
  299  chapter 501.
  300         (b)A person who has sustained economic loss or personal or
  301  emotional injury due to the failure of an agency to comply with
  302  this section has a civil cause of action for compensatory
  303  damages, injunctive relief, or any other appropriate relief in
  304  law or equity. Upon prevailing, the plaintiff may recover
  305  reasonable attorney’s fees and court costs. A defendant is
  306  entitled to recover reasonable attorney’s fees and court costs
  307  upon a finding that the plaintiff raised a claim that was
  308  without substantial fact or legal support.
  309         (c)If an agency violates this section and the aggrieved
  310  party reports the violation to the appropriate controlling
  311  licensing authority, it is the intent of the Legislature that
  312  the licensing authority take into consideration whether the
  313  violation constitutes unprofessional conduct.
  314         Section 5. This act shall take effect July 1, 2010.

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