BILL NUMBER: AB 1217INTRODUCED 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)TheExcept 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 contractwhichthat 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 ofthis sectionsubdivision (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 planwhichthat is a health maintenance organization, as defined in Section 1373.10, andwhichthat 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 insurancewhichthat covers hospital, medical, or surgical expenses on a group basis shall offer coverage for the treatment of infertilitytreatment, 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 whomthey areit is negotiating. (b) (1) For purposes ofthis sectionsubdivision (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 policywhichthat 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.