Stricken language would be deleted from and underlined language would be added to present law.
Act 609 of the Regular Session
1 State of Arkansas As Engrossed: S3/16/21
2 93rd General Assembly A Bill
3 Regular Session, 2021 SENATE BILL 474
4
5 By: Senators Beckham, B. Ballinger, Bledsoe, L. Chesterfield, Elliott, Flippo, Gilmore, B. Johnson, M.
6 Johnson
7 By: Representatives Gazaway, Beaty Jr., S. Berry, Brown, Cloud, Furman, Jean, McCollum, Richmond,
8 Scott, Wardlaw
9
10 For An Act To Be Entitled
11 AN ACT TO CREATE THE CRIMINAL OFFENSES OF FERTILITY
12 TREATMENT ABUSE AND FERTILITY TREATMENT FRAUD; TO
13 CREATE THE CIVIL ACTION OF CIVIL FERTILITY FRAUD; AND
14 FOR OTHER PURPOSES.
15
16
17 Subtitle
18 TO CREATE THE CRIMINAL OFFENSES OF
19 FERTILITY TREATMENT ABUSE AND FERTILITY
20 TREATMENT FRAUD; AND TO CREATE THE CIVIL
21 ACTION OF CIVIL FERTILITY FRAUD.
22
23
24 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
25
26 SECTION 1. Arkansas Code 5-1-109(a)(1), concerning statutes of
27 limitation for certain felony offenses, is amended to add an additional
28 subdivision to read as follows:
29 (N) Fertility treatment fraud, 5-37-220.
30
31 SECTION 2. Arkansas Code Title 5, Chapter 13, Subchapter 2, is amended
32 to add an additional section to read as follows:
33 5-13-212. Fertility treatment abuse.
34 (a) As used in this section:
35 (1) Healthcare provider means a person who is licensed,
36 certified, or otherwise authorized by the laws of this state to administer
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1 health care in the ordinary course of the practice of his or her profession;
2 (2) "Human reproductive material" means the same as defined in
3 5-37-220; and
4 (3) "Unauthorized" means that a person receiving human
5 reproductive material in an assisted reproduction procedure has not expressly
6 consented to the use of the human reproductive material.
7 (b) A person commits fertility treatment abuse if the person is a
8 healthcare provider who, in the course of performing an assisted reproduction
9 procedure on a person, knowingly uses unauthorized human reproductive
10 material.
11 (c) Fertility treatment abuse is a Class B felony.
12
13 SECTION 3. Arkansas Code Title 5, Chapter 37, Subchapter 2, is amended
14 to add an additional section to read as follows:
15 5-37-220. Fertility treatment fraud.
16 (a) As used in this section:
17 (1) "Fertility treatment" means a treatment for infertility,
18 pregnancy, surrogacy, or childbearing; and
19 (2) "Human reproductive material" means:
20 (A) A human spermatozoon or ovum; or
21 (B) A human organism at any stage of development from
22 fertilized ovum to embryo.
23 (b) A person commits the offense of fertility treatment fraud if the
24 person, with the purpose to defraud a person undergoing fertility treatment,
25 misrepresents the:
26 (1) Identity of a person who has donated or is donating human
27 reproductive material to the person undergoing fertility treatment; or
28 (2) Quality of the:
29 (A) Human reproductive material used in the fertility
30 treatment; or
31 (B) Fertility treatment procedure.
32 (c) Fertility treatment fraud is a Class C felony.
33
34 SECTION 4. Arkansas Code Title 16, Chapter 118, is amended to add an
35 additional section to read as follows:
36 16-118-117. Civil fertility fraud.
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1 (a) As used in this section:
2 (1) Healthcare provider means a person who is licensed,
3 certified, or otherwise authorized by the laws of this state to administer
4 health care in the ordinary course of the practice of his or her profession;
5 and
6 (2) "Human reproductive material" means:
7 (A) A human spermatozoon or ovum; or
8 (B) A human organism at any stage of development from
9 fertilized ovum to embryo.
10 (b) A person may bring an action for civil fertility fraud against a
11 healthcare provider who knowingly:
12 (1) Treated the person or the spouse of the person for
13 infertility, pregnancy, surrogacy, or childbearing by using the healthcare
14 provider's own human reproductive material or the human reproductive material
15 of another person without the person's informed written consent to treatment
16 using the healthcare provider's own human reproductive material or the human
17 reproductive material of the other person;
18 (2) Treated the person or the spouse of the person for
19 infertility, pregnancy, surrogacy, or childbearing by using human
20 reproductive material donated by a donor knows or reasonably should have
21 known that the human reproductive material was used:
22 (A) Without the donor's consent; or
23 (B) In a manner or to an extent other than that to which
24 the donor consented; or
25 (3) Used the person's human reproductive material to treat
26 another person for infertility, pregnancy, surrogacy, or childbearing knowing
27 or being in a position to reasonably know that the person did not consent to
28 his or her human reproductive material's being used or used in a manner or to
29 an extent other than that to which the person consented.
30 (c) An action under this section may be commenced not later than five
31 (5) years after the earliest of the date on which:
32 (1) The person first discovers evidence sufficient to bring an
33 action against the healthcare provider through deoxyribonucleic acid (DNA)
34 analysis or other more accurate scientific analysis;
35 (2) The person first becomes aware of the existence of a
36 recording that provides evidence sufficient to bring an action against the
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1 healthcare provider; or
2 (3) The defendant admits to the facts giving rise to the action.
3 (d) A plaintiff who prevails in an action under this section is
4 entitled to:
5 (1) Reasonable attorney's fees;
6 (2) The costs of the fertility treatment as applicable; and
7 (3) Economic, compensatory, and punitive damages.
8 (e) A person who brings an action under subdivision (b)(1) or
9 subdivision (b)(2) of this section has a separate cause of action for each
10 child born as the result of the fraudulent fertility treatment.
11 (f) A person who brings an action under subdivision (b)(4) of this
12 section has a separate cause of action for each fertility patient who
13 received a fertility treatment with the person's human reproductive material.
14 (g) This section does not prohibit a person from pursuing any other
15 remedy provided by law.
16
17 SECTION 5. DO NOT CODIFY. Conflicts with other law.
18 This act does not affect 16-120-901 et seq.
19
20 /s/Beckham
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23 APPROVED: 4/8/21
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Statutes affected:
Old version SB474 Original - 3-4-2021 01:15 PM: 5-1-109(a)
Old version SB474 V2 - 3-16-2021 09:38 AM: 5-1-109(a)
SB 474: 5-1-109(a)
Act 609: 5-1-109(a)