Fighting Fertility Fraud Act of 2023

I 118TH CONGRESS 1ST SESSION H. R. 3710 To amend title 18, United States Code, to prohibit health professionals from providing false or misleading information with respect to assisted reproduction, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 25, 2023 Mrs. MCCLAIN (for herself, Ms. PEREZ, and Mrs. DINGELL) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to prohibit health professionals from providing false or misleading informa- tion with respect to assisted reproduction, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fighting Fertility 4 Fraud Act of 2023’’. 5 VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 3710 IH SEC. 2. FIGHTING FERTILITY FRAUD. 1 (a) IN GENERAL.—Chapter 47 of title 18, United 2 States Code, is amended by adding at the end the fol- 3 lowing: 4 ‘‘SEC. 1041. FRAUD IN CONNECTION WITH THE USE OF 5 HUMAN REPRODUCTIVE MATERIAL. 6 ‘‘(a) OFFENSE BY A PERSON, HEALTH PROFES- 7 SIONAL, OR HEALTH FACILITY.—A person, health profes- 8 sional, or health facility, in any of the circumstances de- 9 scribed in subsection (d), that knowingly provided materi- 10 ally false or misleading information relating to assisted re- 11 production, including— 12 ‘‘(1) the human reproductive material provided 13 or used for assisted reproduction; 14 ‘‘(2) the identifying information of the gamete 15 provider including their name, birth date, or address 16 at the time of gamete provision; or 17 ‘‘(3) a gamete provider’s medical history includ- 18 ing any known physical and mental health illness, 19 the social, genetic, family medical history of the ga- 20 mete provider, or the gamete provider’s educational 21 level, ethnicity, religious background, 22 shall be imprisoned not more than 10 years, fined in ac- 23 cordance this title, or both. 24 ‘‘(b) OFFENSE BY HEALTH PROFESSIONAL OR 25 HEALTH FACILITY.— 26 VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 3710 IH ‘‘(1) IN GENERAL.—A health care professional 1 or health facility, in any of the circumstances de- 2 scribed in subsection (d), that knowingly uses or 3 provides— 4 ‘‘(A) human reproductive material for as- 5 sisted reproduction other than the selected 6 human reproductive material for which patient 7 gave consent in writing to use; or 8 ‘‘(B) a patient with human reproductive 9 material in assisted reproduction without the 10 gamete provider’s consent or in a manner or to 11 an extent other than that to which the gamete 12 provider consented to, 13 shall be imprisoned not more than 10 years, fined in 14 accordance with this title, or both. 15 ‘‘(2) NOT A DEFENSE.—A health care profes- 16 sional or health facility found to have violated para- 17 graph (1) may not use as a defense that a patient 18 consented in writing to the use of human reproduc- 19 tive material from an anonymous gamete provider. 20 ‘‘(c) CIRCUMSTANCES DESCRIBED.—For the pur- 21 poses of subsections (a) and (b), the circumstances de- 22 scribed in this subsection are that— 23 VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 3710 IH ‘‘(1) the conduct described in such subsections 1 occurs during the course of, or as the result of, the 2 travel of the defendant or covered individual— 3 ‘‘(A) across a State line or national border; 4 or 5 ‘‘(B) using a channel, facility, or instru- 6 mentality of interstate or foreign commerce; 7 ‘‘(2) the defendant uses a channel, facility, or 8 instrumentality of interstate or foreign commerce in 9 connection with the conduct described in such sub- 10 sections; 11 ‘‘(3) the conduct described in such sub- 12 sections— 13 ‘‘(A) interferes with commercial or other 14 economic activity in which the defendant or cov- 15 ered individual is engaged at the time of the 16 conduct; or 17 ‘‘(B) otherwise affects interstate or foreign 18 commerce; 19 ‘‘(4) the conduct described in such subsections 20 occurred within the special maritime and territorial 21 jurisdiction of the United States or within any terri- 22 tory or possession of the United States; or 23 ‘‘(5) any payment of any kind was made, di- 24 rectly or indirectly, in furtherance of or in connec- 25 VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 3710 IH tion with the conduct described in subsection (a) 1 using any means, channel, facility, or instrumen- 2 tality of interstate or foreign commerce or in or af- 3 fecting interstate or foreign commerce. 4 ‘‘(d) CAUSE OF ACTION.— 5 ‘‘(1) IN GENERAL.—A cause of action may be 6 brought for a violation of subsection (a) or (b) 7 against a health professional, health facility, or ga- 8 mete provider by a donor conceived individual born 9 as a result of such violation. 10 ‘‘(2) CERTAIN OTHER INDIVIDUALS.—A cause 11 of action may be brought for a violation of sub- 12 section (a) or (b) against a health professional, 13 health facility, or gamete provider by a patient or 14 patient’s spouse for each donor conceived individual 15 born as a result of such violation. 16 ‘‘(3) GAMETE PROVIDER.—A cause of action 17 may be brought for a violation of subsection (a) or 18 (b) against a health professional or health facility by 19 a gamete provider. 20 ‘‘(e) RELIEF.— 21 ‘‘(1) IN GENERAL.—In an action under sub- 22 section (e), the court may award appropriate relief, 23 including temporary, preliminary, or permanent in- 24 junctive relief and compensatory and punitive dam- 25 VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 3710 IH ages, as well as the costs of suit and reasonable fees 1 for attorneys and expert witnesses. With respect to 2 compensatory damages, the plaintiff may elect, at 3 any time prior to the rendering of final judgment, to 4 recover, in lieu of actual damages, an award of stat- 5 utory damages in the amount of $20,000 per viola- 6 tion. 7 ‘‘(2) COMPENSATORY DAMAGES.—Compen- 8 satory damages awarded pursuant to paragraph (1) 9 shall include the amount of all medical expenses in- 10 curred by the patient and any donor conceived child 11 as a result of a violation of subsection (a) or (b), in- 12 cluding the cost of any procedure, treatment, and 13 any other medical expense for the patient and any 14 donor conceived child. 15 ‘‘(f) STATUTE OF LIMITATIONS.—An action brought 16 under subsection (e) may not be brought more than five 17 years after the date on which the violation of subsection 18 (a) or (b) was discovered by a covered individual. 19 ‘‘(g) DEFINITIONS.—In this section: 20 ‘‘(1) ASSISTED REPRODUCTION.—The term ‘as- 21 sisted reproduction’ means a method of causing 22 pregnancy involving medical or scientific interven- 23 tion, other than sexual intercourse. 24 VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 3710 IH ‘‘(2) ASSISTED REPRODUCTIVE TECHNOLOGY.— 1 The term ‘assisted reproductive technology’ means 2 any fertility treatment in which either eggs or em- 3 bryos are handled. 4 ‘‘(3) CONSENT.—The term ‘consent’ means 5 consent in writing that is freely given, knowledge- 6 able, and informed. 7 ‘‘(4) COVERED INDIVIDUAL.—The term ‘cov- 8 ered individual’ means the patient, patient’s spouse, 9 gamete provider, or a donor conceived individual 10 born as a result of a violation of subsection (a) or 11 (b). 12 ‘‘(5) DONOR CONCEIVED INDIVIDUAL.—The 13 term ‘donor conceived individual’ means an indi- 14 vidual conceived from one or more gametes from a 15 gamete provider. 16 ‘‘(6) FAMILY MEDICAL HISTORY.—The term 17 ‘family medical history’ means any known medical 18 history information about an individual’s first and 19 second degree relatives. 20 ‘‘(7) FERTILITY FRAUD.—The term ‘fertility 21 fraud’ means any misrepresentation or false infor- 22 mation provided in assisted reproduction. 23 ‘‘(8) GAMETE.—The term ‘gamete’ means an 24 unfertilized egg or sperm. 25 VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 3710 IH ‘‘(9) GAMETE PROVIDER.—The term ‘gamete 1 provider’ means an individual who provides gametes 2 intended for use in assisted reproduction, whether or 3 not for consideration. 4 ‘‘(10) HEALTH FACILITY.—The term ‘health fa- 5 cility’ means a hospital, clinic, bank, laboratory, fa- 6 cility, or other health care institution involved in any 7 aspect of assisted reproduction. 8 ‘‘(11) HEALTH PROFESSIONAL.—The term 9 ‘health professional’ means an individual licensed, 10 registered, certified, or otherwise authorized to en- 11 gage in a health profession. 12 ‘‘(12) HUMAN REPRODUCTIVE MATERIAL.— 13 The term ‘human reproductive material’ means a 14 human sperm, egg, or a human organism at any 15 stage of development from fertilized ovum to em- 16 bryo. 17 ‘‘(13) MEDICAL HISTORY.—The term ‘medical 18 history’ means information about any known phys- 19 ical, social, and mental health of an individual 20 known to be, or that could be, inheritable according 21 to medical standards. 22 ‘‘(14) PATIENT.—The term ‘patient’ means an 23 individual under the care of a health professional. 24 VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 3710 IH ‘‘(15) PATIENT’S SPOUSE.—The term ‘patient’s 1 spouse’ means the spouse or partner of the patient 2 at the time at which the assisted reproduction oc- 3 curred.’’. 4 (b) CLERICAL AMENDMENT.—The table of sections 5 at the beginning of chapter 47 of title 18, United States 6 Code, is amended by adding at the end the following new 7 item: 8 ‘‘1041. Fraud in connection with the use of human reproductive material.’’. Æ VerDate Sep 11 2014 00:33 Jun 20, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H3710.IH H3710 pbinns on DSKJLVW7X2PROD with $$_JOB