CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2014

Author:(Maienschein)

As Amended Ver:July 23, 2020

Majority vote

SUMMARY:

Extends the statute of limitations for criminal offenses involving the misuse of sperm, ova, or embryos in assisted reproduction technology.

Major Provisions:

1. Extends the statute of limitations for a criminal offense relating to the misuse of sperm, ova, or embryos in assisted reproduction technology from three years from the time that the offense occurred, to one year from the discovery of the offense.
2. Specifies that the statute of limitations proposed by this bill would only apply to offenses committed on or after January 1, 2021, and to crimes for which the statute of limitations that was in effect before January 1, 2021, has not expired as of January 1, 2021.

The Senate Amendments:

Clarify that the statute of limitations for criminal offense relating to the misuse of sperm, ova, or embryos in assisted reproduction technology may be brought within one year of the actual discovery of the offense or within one year after the offense could have been reasonably discovered.

COMMENTS:

Statute of Limitations:

The statute of limitations requires a prosecution to be initiated within a certain period of time after the commission of a crime. A prosecution is initiated by filing an indictment or information, filing a complaint, certifying a case to superior court, or issuing an arrest or bench warrant.

The statute of limitations serves several important purposes in a criminal prosecution, including staleness, prompt investigation, and finality. The statute of limitations protects persons accused of crime from having to face charges based on evidence that may be unreliable, and from losing access to the evidentiary means to defend against the accusation. With the passage of time, memory fades, witnesses may die or otherwise become unavailable, and physical evidence can become unobtainable or contaminated.

Fertility Fraud Cases:

Although the crimes are rare, the offense of using or implanting reproductive material in a manner that is inconsistent with the will of the donor is one that, by its very nature, is difficult to detect at the time the offense occurs. The typical offense is not likely to be discovered until a person discovers a previously-unknown familial relationship through genetic testing. Such testing may not occur for years or even decades after the moment when a doctor or medical professional fraudulently implanted sperm or an embryo without the consent of the donor. This bill would allow a criminal complaint to be filed within one year of the discovery of the offense and would not require that a criminal complaint be filed within three years of the commission of the fraudulent implantation. This would appear to be consistent with other extended limitation periods for offenses that are unlikely to be discovered until some number of years after the offense is committed.

According to the Author:

"Making the decision to have a child through Assisted Reproductive techniques is monumental to a couple, and having to experience this type of fraud can be a massive violation of the personal, fiduciary, and ethical realms. While this is an illegal practice in California, there is a glaring deficiency that the legislature can address. Current statute of limitations provides a 3-year window after commission of the offense to be prosecuted; however, it is common for victims to discover this way after the fact. For example, a case in Indiana was uncovered ranging from 26-40 years after the fraud occurred, which would mean this misconduct could not be prosecuted under California law. By changing the statute of limitations to 3 years from discovery, we can provide victims with a viable option for seeking justice."

Arguments in Support:

Crime Victim's United is in support of this legislation.

Arguments in Opposition:

According to California Attorneys for Criminal Justice: "This bill would extend the statute of limitations for crimes involving the misuse of sperm, ova or embryos. The current limitations period is three years, but AB 2014 would extend this period for forty years or more.

"By using the word, "knowingly," this statute requires the prosecution to prove that the person using the assisted reproduction technology actually knew that the donor had not consented to the way the sperm, ova or embryo were used. In addition, the person using the assisted reproduction technology must have actually known that the recipient of implanted sperm, ova or embryos had not consented to the implantation.

"The best evidence of whether someone actually knew whether consent had been given is the records of the fertility clinic where the procedure was performed. Either there is a written consent form on file, or there is not.

"However, as time passes, records can disappear. Computer storage devices can be damaged or lost or their files can be erased. Paper records can be lost or destroyed. And of course, human memory degrades over time."

FISCAL COMMENTS:

According to the Senate Appropriations Committee:

1. State Prison: Unknown, potential increase in state costs for new commitments to state prison that otherwise would not have resulted in criminal convictions absent this measure. The FY 2020-2021 per capita cost to detain a person in a state prison is $91,100 annually, with an annual marginal rate per person of over $12,000. The contract bed rate averages to about $29,000 annually. The actual costs would depend on how many defendants are sentenced to prison. (General Fund)
2. Courts: Unknown, potentially-significant workload cost pressures to the courts to adjudicate charges that would be time barred under current law. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the Budget Act of 2020 appropriated $273.8 million from the General Fund to backfill continued reduction in fine and fee revenue for trial court operations. (General Fund*)

*Trial Court Trust Fund

VOTES:

ASM PUBLIC SAFETY: 6-0-2

YES: Jones-Sawyer, Bauer-Kahan, Diep, Kamlager, Gabriel, Santiago

ABS, ABST OR NV: Lackey, Wicks

ASSEMBLY FLOOR: 75-0-4

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Bigelow, Kamlager, Muratsuchi, Quirk

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Melendez, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Jones

UPDATED:

VERSION: July 23, 2020

CONSULTANT: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0003521

 THIRD READING  

Bill No: AB 2014

Author: Maienschein (D)

Amended: 7/23/20 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/31/20

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

ASSEMBLY FLOOR: 75-0, 6/8/20 - See last page for vote

SUBJECT: Medical misconduct: misuse of sperm, ova, or embryos: statute of limitations

SOURCE: Author

DIGEST:

This bill extends the statute of limitations for criminal offenses involving the misuse of sperm, ova, or embryos in assisted reproduction technology.

ANALYSIS:

Existing law:

1. Provides that prosecution for crimes punishable by imprisonment for eight years or more and not otherwise covered must be commenced within six years after commission of the offense. (Pen. Code, § 800.)
2. Provides that prosecution for other felonies punishable by less than eight years must be commenced within three years after commission of the offense. (Pen. Code, § 801.)
3. Provides that prosecution for crimes involving fraud, breach of a fiduciary duty, embezzlement of funds from an elder or dependent adult, or misconduct by a public official does not start to run until the discovery of the offense and prosecution must be commenced within four years after discovery of the crime or within four years after completion, whichever is later. (Penal Code § 801.5 & 803, subd. (c).)
4. States that prosecution for a misdemeanor shall be commenced within one year after the commission of the offense, unless otherwise specified. (Pen. Code, § 802, subd. (a).)
5. Specifies that the statute of limitations for misdemeanors related to unlawful business practices and license violations is within three years after discovery of the commission of the offense, or within three years after completion of the offense, whichever is later. (Pen. Code, § 802, subd. (e).)
6. Provides that unless provided, as specified, a limitation of time is not tolled or extended for any reason. (Penal Code § 803, subd. (a).)
7. Provides that if more than one statute of limitations period applies to a crime, the time for commencing an action shall be governed by the period that expires later in time. (Penal Code § 803.6, subd. (a).)
8. States that, except as otherwise provided, prosecution for an offense is commenced when any of the following occurs:
   1. An indictment or information is filed;
   2. A complaint is filed charging a misdemeanor or infraction;
   3. The defendant is arraigned on a complaint that charges the defendant with a felony; or,
   4. An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint. (Pen. Code, § 804.)
9. States that for purposes of determining the applicable limitation of time the following apply:
   1. An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.
   2. The limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense. (Pen. Code, § 805.)
10. States that for purposes of determining the applicable limitation of time the following apply:
    1. An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.
    2. The limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense. (Pen. Code, § 805.)
11. States that for purposes of determining the applicable limitation of time the following apply:
    1. An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.
    2. The limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense. (Pen. Code, § 805.)
12. Punishes the unlawful use or implantation of sperm, ova, or embryos by imprisonment in the county jail for three, four, or five years, by a fine not to exceed fifty thousand dollars ($50,000), or by both that fine and imprisonment. (Pen. Code § 367g, subd. (c).)

This bill:

1. Extends the statute of limitations for violations of misuse or sperm, ova, or embryos in assisted reproduction technology from three years after commission of the offense to within one year of discovery of the offense or within one year after the offense could have reasonably been discovered.
2. Specifies that the amended statute of limitations applies to crimes committed on or after January 1, 2021, and to crimes for which the statute of limitations that was in effect prior to January 1, 2021, has not elapsed as of January 1, 2021.

Comments

According to the author:

The deficiency in existing law is that the statute of limitations on this type of offense is 3 years from commission of the offense.

Making the decision to have a child through Assisted Reproductive techniques is monumental to a couple, and having to experience this type of fraud can be a massive violation of the personal, fiduciary, and ethical realms. While this is an illegal practice in California, there is a glaring deficiency that the legislature can address. Current statute of limitations provides a 3 year window after commission of the offense to be prosecuted; however, it is common for victims to discover this way after the fact. For example, a case in Indiana was uncovered ranging from 26-40 years after the fraud occurred, which would mean this misconduct could not be prosecuted under California law.

By changing the statute of limitations to a year from discovery, we can provide victims with a viable option for seeking justice.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Appropriations Committee:

• State Prison: Unknown, potential increase in state costs for new commitments to state prison that otherwise would not have resulted in criminal convictions absent this measure. The FY 2020-2021 per capita cost to detain a person in a state prison is $91,100 annually, with an annual marginal rate per person of over $12,000. The contract bed rate averages to about $29,000 annually. The actual costs would depend on how many defendants are sentenced to prison. (General Fund)
• Courts: Unknown, potentially-significant workload cost pressures to the courts to adjudicate charges that would be time barred under current law. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the Budget Act of 2020 appropriated $273.8 million from the General Fund to backfill continued reduction in fine and fee revenue for trial court operations. (General Fund*)

*Trial Court Trust Fund

SUPPORT: (Verified 8/20/20)

Crime Victims United of California

OPPOSITION: (Verified 8/20/20)

None received

ASSEMBLY FLOOR: 75-0, 6/8/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Bigelow, Kamlager, Muratsuchi, Quirk

Prepared by: Stella Choe / PUB. S. /

8/21/20 17:56:21

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 2014 (Maienschein) - Medical misconduct: misuse of sperm, ova, or embryos: statute of limitations

Bill Summary:

AB 2140 would extend the statute of limitations for criminal offenses involving the misuse of sperm, ova, or embryos in assisted reproduction technology.

Fiscal Impact:

• State Prison: Unknown, potential increase in state costs for new commitments to state prison that otherwise would not have resulted in criminal convictions absent this measure. The FY 2020-2021 per capita cost to detain a person in a state prison is $91,100 annually, with an annual marginal rate per person of over $12,000. The contract bed rate averages to about $29,000 annually. The actual costs would depend on how many defendants are sentenced to prison. (General Fund)
• Courts: Unknown, potentially-significant workload cost pressures to the courts to adjudicate charges that would be time barred under current law. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the Budget Act of 2020 appropriated $273.8 million from the General Fund to backfill continued reduction in fine and fee revenue for trial court operations. (General Fund*)

*Trial Court Trust Fund

Background:

According to the analysis of this bill by the Senate Committee on Public Safety:

Statutes of limitations require commencement of a prosecution within a certain period of time after the commission of a crime. A prosecution is initiated by filing an indictment or information, filing a complaint, certifying a case to superior court, or issuing an arrest or bench warrant. (Penal Code § 804.) The failure of a prosecution to be commenced within the applicable period of limitation is a complete defense to the charge. The statute of limitations is jurisdictional and may be raised as a defense at any time, before or after judgment. (People v. Morris (1988) 46 Cal.3d 1, 13.) The defense may only be waived under limited circumstances. (See Cowan v. Superior Court (1996) 14 Cal.4th 367.)

The Legislature enacted the current statutory scheme regarding statutes of limitations for crimes in 1984 in response to a report of the California Law Revision Commission:

The Commission identified various factors to be considered in drafting a limitations statute. These factors include: (a) The staleness factor. A person accused of crime should be protected from having to face charges based on possibly unreliable evidence and from losing access to the evidentiary means to defend. (b) The repose factor. This reflects society's lack of a desire to prosecute for crimes committed in the distant past. (c) The motivation factor. This aspect of the statute imposes a priority among crimes for investigation and prosecution. (d) The seriousness factor. The statute of limitations is a grant of amnesty to a defendant; the more serious the crime, the less willing society is to grant that amnesty. (e) The concealment factor. Detection of certain concealed crimes may be quite difficult and may require long investigations to identify and prosecute the perpetrators.

The Commission concluded that a felony limitations statute generally should be based on the seriousness of the crime. Seriousness is easily determined based on classification of a crime as felony or misdemeanor and the punishment specified, and a scheme based on seriousness generally will accommodate the other factors as well. Also, the simplicity of a limitations period based on seriousness provides predictability and promotes uniformity of treatment.

The Commission’s recommendation that the statute of limitation period should correspond to the seriousness of the crime would best be effectuated by a one-year period for misdemeanors, a three-year period for most felonies, a six-year period for felonies punishable by eight or more years imprisonment), and no limitation for capital crimes or crimes punishable by life imprisonment.

As to tolling of the statute of limitations until discovery of the offense, the Commission noted that tolling is appropriate for crimes where a material element is fraud or breach of a fiduciary obligation, however tolling should not be permitted to run indefinitely. The Commission recommended that a crime to which tolling applies should not be subject to prosecution more than nine years after it is committed and that such a limit would be a reasonable balance of interests. [Fn. omitted.]

…

Generally, the statute of limitations for misdemeanor offenses requires commencement of prosecution within one year of the commission of the offense (Pen. Code § 802) and for felony offenses, within three years of the commission of the offense (Pen. Code § 801). There are specified exceptions that either provides for a longer statute of limitations (Pen. Code, §§ 801.5, 802), tolls the time that the statute starts to run such as when the crime is discovered (Pen. Code § 803), or provides no statute of limitations at all (Pen. Code § 799).

Knowingly using sperm, ova, or embryos in assisted reproduction technology for any purpose other than that indicated by the sperm, ova, or embryo provider’s signature on a written consent form or knowingly implanting sperm, ova, or embryos, through the use of assisted reproduction technology, into a recipient who is not the sperm, ova, or embryo provider, without the signed written consent of the sperm, ova, or embryo provider and recipient is a felony offense that is punishable pursuant to the 2011 Realignment Legislation by incarceration for three, four, or five years, a base fine of up to $50,000, or both the incarceration and fine.

Proposed Law:

This bill would allow a criminal complaint for crimes involving the unlawful use or implantation of sperm, ova, or embryos be filed within one year after the discovery of the offense or within one year after the offense reasonably could have been discovered for conduct that was committed on or after January 1, 2021 and for which the statute of limitations has not run as of January 1, 2021.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of the defendant, and the factors unique to each case. To the extent even one additional defendant is committed to state prison as a result of this bill, state incarceration costs would surpass the Suspense File threshold. Additionally, as the crimes that are the subject of this bill are punishable with the potential of incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier court proceedings. Consequently, to the extent that the court adjudicates more than a few felony offenses that otherwise would have been time barred but for this measure, costs to the court resulting from this bill would be significant.

With respect to the prison population, California is subject to a federal court order to reduce its in-state adult institution population to 137.5 percent of design capacity.  The state has undertaken efforts to implement a durable remedy to reduce and avoid prison overcrowding.  On July 29, 2020, 102,457 individuals were incarcerated in the state’s 35 adult institutions and camps, and 3,556 were detained in in-state contract beds.  The prison population changes daily as new people are admitted and others are released, but, on that date, the state’s prison population was at approximately 117.4 percent of design capacity. (It is worth noting that, currently, there are approximately 6,000 individuals awaiting transfer from county jails to prison. New prison admissions have been placed on hold temporarily, however, because of the COVID-19 pandemic.) By potentially increasing the inmate population in in-state institutions, this bill could make it more difficult for the state to comply with the court order.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 2014 Hearing Date: July 31, 2020

Subject: Medical Misconduct: Misuse of Sperm, Ova, or Embryos: Statute of Limitations

HISTORY

Source: Author

Prior Legislation: SB 239 (Chang), held in Asm. Approps. Comm., 2019

SB 610 (Nguyen), Ch. 74, Stats. 2017

SB 1088 (Nguyen), vetoed, 2016

AB 32 (Waldron), Ch. 614, Stats. 2015

AB 1649 (Waldron), Ch. 379, Stats. 2014

AB 22 (Torres), Ch. 70, Stats. 2009

AB 2727 (Wesson), Ch. 635, Stats. 2000

AB 2232 (Oller), Ch. 634, Stats. 2000

SB 451 (Maddox), Ch. 254, Stats. 1999

SB 1555 (Hayden), Ch. 865, Stats. 1996

SB 255 (Davis), Ch. 1499, Stats. 1987

Support: Crime Victims United of California

Opposition: None known

Assembly Floor Vote: 75 - 0

PURPOSE

The purpose of this bill is to extend the statute of limitations for criminal offenses involving the misuse of sperm, ova, or embryos in assisted reproduction technology.

Existing law provides that prosecution for crimes punishable by imprisonment for eight years or more and not otherwise covered must be commenced within six years after commission of the offense. (Pen. Code, § 800.)

Existing law provides that prosecution for other felonies punishable by less than eight years must be commenced within three years after commission of the offense. (Pen. Code, § 801.)

Existing law provides that prosecution for crimes involving fraud, breach of a fiduciary duty, embezzlement of funds from an elder or dependent adult, or misconduct by a public official does not start to run until the discovery of the offense and prosecution must be commenced within four years after discovery of the crime or within four years after completion, whichever is later. (Penal Code § 801.5 & 803, subd. (c).)

Existing law states that prosecution for a misdemeanor shall be commenced within one year after the commission of the offense, unless otherwise specified. (Pen. Code, § 802, subd. (a).)

Existing law specifies that the statute of limitations for misdemeanors related to unlawful business practices and license violations is within three years after discovery of the commission of the offense, or within three years after completion of the offense, whichever is later. (Pen. Code, § 802, subd. (e).)

Existing law provides that unless provided, as specified, a limitation of time is not tolled or extended for any reason. (Penal Code § 803, subd. (a).)

Existing law provides that if more than one statute of limitations period applies to a crime, the time for commencing an action shall be governed by the period that expires later in time. (Penal Code § 803.6, subd. (a).)

Existing law states that, except as otherwise provided, prosecution for an offense is commenced when any of the following occurs:

• An indictment or information is filed;
• A complaint is filed charging a misdemeanor or infraction;
• The defendant is arraigned on a complaint that charges the defendant with a felony; or,
• An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint. (Pen. Code, § 804.)

Existing law states that for purposes of determining the applicable limitation of time the following apply:

• An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense;
• The limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense. (Pen. Code, § 805.)

Existing law states that it is unlawful for anyone to knowingly use sperm, ova, or embryos in assisted reproduction technology, for any purpose other than that indicated by the sperm, ova, or embryo provider’s signature on a written consent form. (Pen. Code, § 367g, subd. (a).)

Existing law states that it is unlawful for anyone to knowingly implant sperm, ova, or embryos, through the use of assisted reproduction technology, into a recipient who is not the sperm, ova, or embryo provider, without the signed written consent of the sperm, ova, or embryo provider and recipient. (Pen. Code, § 367g, subd. (b).)

Existing law punishes the unlawful use or implantation of sperm, ova, or embryos by imprisonment in the county jail for three, four, or five years, by a fine not to exceed fifty thousand dollars ($50,000), or by both that fine and imprisonment. (Pen. Code § 367g, subd. (c).)

This bill extends the statute of limitations for violations of misuse or sperm, ova, or embryos in assisted reproduction technology from three years after commission of the offense to within one year of discovery of the offense or within one year after the offense could have reasonably been discovered.

This bill specifies that the amended statute of limitations applies to crimes committed on or after January 1, 2021, and to crimes for which the statute of limitations that was in effect prior to January 1, 2021, has not elapsed as of January 1, 2021.

COMMENTS

1. Need for This Bill

According to the author of this bill:

The deficiency in existing law is that the statute of limitations on this type of offense is 3 years from commission of the offense.

Making the decision to have a child through Assisted Reproductive techniques is monumental to a couple, and having to experience this type of fraud can be a massive violation of the personal, fiduciary, and ethical realms. While this is an illegal practice in California, there is a glaring deficiency that the legislature can address. Current statute of limitations provides a 3 year window after commission of the offense to be prosecuted; however, it is common for victims to discover this way after the fact. For example, a case in Indiana was uncovered ranging from 26-40 years after the fraud occurred, which would mean this misconduct could not be prosecuted under California law.

By changing the statute of limitations to a year from discovery, we can provide victims with a viable option for seeking justice.

2. Fertility Fraud Cases

In the 1990’s, two doctors were charged with stealing embryos and eggs belonging to women who sought fertility treatment at the University of California Irvine Center for Reproductive Health and implanting them in other women without the consent of the donors. (Carollo, Fertility Doctor on the Run Arrested in Mexico, ABC News, Dec. 28, 2010, available at: https://abcnews.go.com/Health/ReproductiveHealth/fugitive-fertility-doctor-ricardo-asch-arrested-mexico/story?id=12492575, [as of July 8, 2020].) That case, which involved dozens of victims (Id.), led California to introduce legislation which criminalized the misuse of sperm, embryo and ova. SB 1555 (Hayden) Chapter 865, Statutes of 1996, made it illegal for any person to knowingly use sperm, embryo and ova in manner that was inconsistent with the consent of the donor, and imposed prison penalties for a violation of that provision.

According to the Society for Assisted Reproductive Technology (SART), California was the first state to criminalize fertility fraud and only two other states have similar laws. (SART website, https://www.sart.org/news-and-publications/news-and-research/legally-speaking/fertility-fraud-an-update/ [as of July 8, 2020].). According to SART:

“In the typical fertility fraud fact pattern, an adult learns that he or she has different paternal genetic relations and/or unexpected half-genetic siblings. This adult may have already known that he/she was donor-conceived or may discover that fact through the genetic testing process. Conversations with these new relations suggest that something just isn’t right. In some cases, half-genetic siblings find that their parents all sought treatment from the same physician, and in others, their investigative efforts reveal a genetic relationship to the physician. When asked about the circumstances of their fertility treatment, their mothers state that they were told (based on their history of infertility) that the sperm would come from their husbands or anonymous medical residents resembling their husbands. Doctor-conceived individuals and their parents have sought accountability through a number of routes, including speaking with journalists and other media personalities, seeking state law reform, filing a complaint with a state medical board, reporting the physician to a prosecutor or a state Attorney General, pursuing a private legal settlement, and filing a civil tort suit.” (Id.)

Although the crimes are rare, the offense of using or implanting reproductive material in a manner that is inconsistent with the will of the donor is one that, by its very nature, is difficult to detect at the time the offense occurs. As indicated by the SART, the typical offense is not likely to be discovered until a person discovers a previously-unknown familial relationship through genetic testing. Such testing may not occur for years or even decades after the moment when a doctor or medical professional fraudulently implanted sperm or an embryo without the consent of the donor. This bill would allow a criminal complaint to be filed within one year of the discovery of the offense or within one year after the offense could have reasonably been discovered. The current law requires that a criminal complaint be filed within three years of the commission of the fraudulent implantation.

3. Statutes of Limitations

Statutes of limitations require commencement of a prosecution within a certain period of time after the commission of a crime. A prosecution is initiated by filing an indictment or information, filing a complaint, certifying a case to superior court, or issuing an arrest or bench warrant. (Penal Code § 804.) The failure of a prosecution to be commenced within the applicable period of limitation is a complete defense to the charge. The statute of limitations is jurisdictional and may be raised as a defense at any time, before or after judgment. (People v. Morris (1988) 46 Cal.3d 1, 13.) The defense may only be waived under limited circumstances. (See Cowan v. Superior Court (1996) 14 Cal.4th 367.)

The Legislature enacted the current statutory scheme regarding statutes of limitations for crimes in 1984 in response to a report of the California Law Revision Commission:

The Commission identified various factors to be considered in drafting a limitations statute. These factors include: (a) The staleness factor. A person accused of crime should be protected from having to face charges based on possibly unreliable evidence and from losing access to the evidentiary means to defend. (b) The repose factor. This reflects society's lack of a desire to prosecute for crimes committed in the distant past. (c) The motivation factor. This aspect of the statute imposes a priority among crimes for investigation and prosecution. (d) The seriousness factor. The statute of limitations is a grant of amnesty to a defendant; the more serious the crime, the less willing society is to grant that amnesty. (e) The concealment factor. Detection of certain concealed crimes may be quite difficult and may require long investigations to identify and prosecute the perpetrators.

The Commission concluded that a felony limitations statute generally should be based on the seriousness of the crime. Seriousness is easily determined based on classification of a crime as felony or misdemeanor and the punishment specified, and a scheme based on seriousness generally will accommodate the other factors as well. Also, the simplicity of a limitations period based on seriousness provides predictability and promotes uniformity of treatment.

The Commission’s recommendation that the statute of limitation period should correspond to the seriousness of the crime would best be effectuated by a one-year period for misdemeanors, a three-year period for most felonies, a six-year period for felonies punishable by eight or more years imprisonment), and no limitation for capital crimes or crimes punishable by life imprisonment.

As to tolling of the statute of limitations until discovery of the offense, the Commission noted that tolling is appropriate for crimes where a material element is fraud or breach of a fiduciary obligation, however tolling should not be permitted to run indefinitely. The Commission recommended that a crime to which tolling applies should not be subject to prosecution more than nine years after it is committed and that such a limit would be a reasonable balance of interests. ^[1]

The United States Supreme Court has stated that statutes of limitations are the primary guarantee against bringing overly stale criminal charges. (United States v. Ewell (1966) 383 U.S. 116, 122.) There is a measure of predictability provided by specifying a limit beyond which there is an irrebutable presumption that a defendant's right to a fair trial would be prejudiced. Such laws reflect legislative assessments of relative interests of the state and the defendant in administering and receiving justice: “Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. And that judgment typically rests, in large part, upon evidentiary concerns – for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable. (Stogner v. California (2003) 539 U.S. 607, 615.)

Generally, the statute of limitations for misdemeanor offenses requires commencement of prosecution within one year of the commission of the offense (Pen. Code § 802) and for felony offenses, within three years of the commission of the offense (Pen. Code § 801). There are specified exceptions that either provides for a longer statute of limitations (Pen. Code, §§ 801.5, 802), tolls the time that the statute starts to run such as when the crime is discovered (Pen. Code § 803), or provides no statute of limitations at all (Pen. Code § 799).

This bill specifies for crimes involving the misuse of sperm, ova, or embryos in assisted reproduction technology, the statute of limitations is one year after discovery of the offense or within one year after the offense could have reasonably been discovered. This timeframe is similar to statutes of limitations for offenses that may be difficult to detect at the time of commission such as criminal storage of a firearm or installation of an inoperable fire protection system. (See Pen. Code, § 803, subd. (e).)

As discussed in the Law Review Commission’s report, tolling the statute of limitations indefinitely may not be reasonable when balancing all of the interests that must be considered when determining an appropriate limitation. The Commission recommended that statutes of limitations should not be allowed to toll for more than 9 years for a felony, however, such a limit may not provide adequate time for these crimes to be discovered considering most people seem to find out by chance that a biological parent is not who they’ve believed them to be, which can happen at any time, but may be more likely as an adult.

4. Effect of this Legislation

The effect of this change is that the statute of limitations would be longer than the current limit and potentially allow prosecution of cases many years after the crime was committed depending on when the crime is discovered. However, courts have interpreted the date of discovery provision of statutes of limitations to require due diligence in the investigative efforts of the crime. (People v. Zamora (1976) 18 Cal.3d 538, 561; People v. Lopez (1997) 52 Cal.App.4th 233, 246.) Thus, “discovery of the offense” is not synonymous with the date that the victim gained actual knowledge of the crime. (People v. Zamora, supra, 18 Cal.3d at 571.) “The crucial determination is whether law enforcement authorities or the victim had actual notice of circumstances sufficient to make them suspicious of fraud thereby leading them to make inquiries which might have revealed the fraud. (Id. at 572, original italics.) The identity of the perpetrator of the crime is not an element of the discovery issue. (People v. Crossman (1986) 210 Cal. App. 3d 476, 481.)

So while it is possible that the crimes affected by this bill could be prosecuted many years after their commission, the prosecutor would have the burden to prove by a preponderance of the evidence that the prosecution of the crime began within the required time which includes consideration of when the victim or law enforcement was aware of facts that would have alerted a reasonably diligent person in the same circumstances that a crime may have been committed. (CALCRIM No. 3410.)

This bill codifies case law and jury instructions by requiring due diligence in discovering the crime when determining what the date of discovery should be for the purposes of a tolled statute of limitations period. Specifically, this bill provides that for violations of misuse or sperm, ova, or embryos in assisted reproduction technology, a criminal complaint shall be filed within one year of discovery of the offense or within one year after the offense could have reasonably been discovered.

1. Ex Post Facto

In Stogner v. California, supra, 539 U.S. 607 the Supreme Court ruled that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. (Id. at pp. 610-611, 616.) However, extension of an existing statute of limitations is not ex post facto as long as the prior limitations period has not expired. (Id. at pp. 618-619.) Existing statutory law also provides that any change in the time period for the commencement of prosecution applies to any crime if prosecution for the crime was not barred on the effective date of the change by the statute of limitations in effect immediately prior to the effective date of the change. (Pen. Code § 803.6, subd. (b).)

Under these principles, the amended statute of limitations provided for in this bill cannot be applied to cases in which the existing statute of limitations period has expired. This bill specifies that the amended statute of limitations applies to crimes committed on or after January 1, 2021 and to crimes for which the statute of limitations that was in effect prior to January 1, 2021, has not elapsed as of January 1, 2021.

-- END –

1. 1 Witkin Cal. Crim. Law Defenses, Section 214 (3rd Ed. 2004), citing 17 Cal. Law Rev. Com. Reports, pp.308-315. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 2014

Author:(Maienschein)

As Amended Ver:May 4, 2020

Majority vote

SUMMARY:

Extends the statute of limitations for criminal offenses involving the misuse of sperm, ova, or embryos in assisted reproduction technology.

Major Provisions

1. Extends the statute of limitations for a criminal offense relating to the misuse of sperm, ova, or embryos in assisted reproduction technology from three years from the time that the offense occurred, to one year from the discovery of the offense.
2. Specifies that the statute of limitations proposed by this bill would only apply to offenses committed on or after January 1, 2021, and to crimes for which the statute of limitations that was in effect before January 1, 2021, has not expired as of January 1, 2021.

COMMENTS:

Statute of Limitations:

The statute of limitations requires a prosecution to be initiated within a certain period of time after the commission of a crime. A prosecution is initiated by filing an indictment or information, filing a complaint, certifying a case to superior court, or issuing an arrest or bench warrant.

The statute of limitations serves several important purposes in a criminal prosecution, including staleness, prompt investigation, and finality. The statute of limitations protects persons accused of crime from having to face charges based on evidence that may be unreliable, and from losing access to the evidentiary means to defend against the accusation. With the passage of time, memory fades, witnesses may die or otherwise become unavailable, and physical evidence can become unobtainable or contaminated.

Fertility Fraud Cases:

Although the crimes are rare, the offense of using or implanting reproductive material in a manner that is inconsistent with the will of the donor is one that, by its very nature, is difficult to detect at the time the offense occurs. The typical offense is not likely to be discovered until a person discovers a previously-unknown familial relationship through genetic testing. Such testing may not occur for years or even decades after the moment when a doctor or medical professional fraudulently implanted sperm or an embryo without the consent of the donor. This bill would allow a criminal complaint to be filed within one year of the discovery of the offense and would not require that a criminal complaint be filed within three years of the commission of the fraudulent implantation. This would appear to be consistent with other extended limitation periods for offenses that are unlikely to be discovered until some number of years after the offense is committed.

According to the Author:

"Making the decision to have a child through Assisted Reproductive techniques is monumental to a couple, and having to experience this type of fraud can be a massive violation of the personal, fiduciary, and ethical realms. While this is an illegal practice in California, there is a glaring deficiency that the legislature can address. Current statute of limitations provides a 3 year window after commission of the offense to be prosecuted; however, it is common for victims to discover this way after the fact. For example, a case in Indiana was uncovered ranging from 26-40 years after the fraud occurred, which would mean this misconduct could not be prosecuted under California law. By changing the statute of limitations to 3 years from discovery, we can provide victims with a viable option for seeking justice."

Arguments in Support:

Crime Victim's United is in support of this legislation.

Arguments in Opposition:

According to California Attorneys for Criminal Justice: "This bill would extend the statute of limitations for crimes involving the misuse of sperm, ova or embryos. The current limitations period is three years, but AB 2014 would extend this period for forty years or more.

"By using the word, "knowingly," this statute requires the prosecution to prove that the person using the assisted reproduction technology actually knew that the donor had not consented to the way the sperm, ova or embryo were used. In addition, the person using the assisted reproduction technology must have actually known that the recipient of implanted sperm, ova or embryos had not consented to the implantation.

"The best evidence of whether someone actually knew whether consent had been given is the records of the fertility clinic where the procedure was performed. Either there is a written consent form on file, or there is not.

"However, as time passes, records can disappear. Computer storage devices can be damaged or lost or their files can be erased. Paper records can be lost or destroyed. And of course, human memory degrades over time."

FISCAL COMMENTS:

Unknown. The bill is keyed non-fiscal by the Legislative Counsel.

VOTES:

ASM PUBLIC SAFETY: 6-0-2

YES: Jones-Sawyer, Bauer-Kahan, Diep, Kamlager, Gabriel, Santiago

ABS, ABST OR NV: Lackey, Wicks

UPDATED:

VERSION: May 4, 2020

CONSULTANT: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0002793

Date of Hearing:

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2014

Author:(Maienschein) – As Amended Ver:March 4, 2020

SUMMARY:

Extends the statute of limitations for civil lawsuits and criminal offenses involving the misuse of sperm, ova, or embryos in assisted reproduction technology. Specifically, this bill:

1. Extends the statute of limitations in a civil action for assault, battery, or injury to, or for the death of, an individual caused by a wrongful act or neglect in regards to the misuse of sperm, ova, or embryos in assisted reproduction technology from two years beginning at the time of wrongful act or neglect, to three years from the discovery of the wrongful act or neglect.
   
2. Extends the statute of limitations for a criminal offense relating to the misuse of sperm, ova, or embryos in assisted reproduction technology from three years from the time that the offense occurred, to one year from the discovery of the offense.
   
3. Specifies that the statute of limitations proposed by this bill would only apply to offenses committed on or after January 1, 2021, and to crimes for which the statute of limitations that was in effect before January 1, 2021, has not expired as of January 1, 2021.

EXISTING LAW:

1. States that it is unlawful for anyone to knowingly use sperm, ova, or embryos in assisted reproduction technology, for any purpose other than that indicated by the sperm, ova, or embryo provider’s signature on a written consent form. (Pen. Code § 367g, subd. (a).)
   
2. States that it is unlawful for anyone to knowingly implant sperm, ova, or embryos, through the use of assisted reproduction technology, into a recipient who is not the sperm, ova, or embryo provider, without the signed written consent of the sperm, ova, or embryo provider and recipient. (Pen. Code § 367g, subd. (b).)
   
3. Punishes the unlawful use or implantation of sperm, ova, or embryos by imprisonment in the county jail for three, four, or five years, by a fine not to exceed fifty thousand dollars ($50,000), or by both that fine and imprisonment. (Pen. Code § 367g, subd. (c).)
   
4. Provides that there is no statute of limitations for crimes punishable by death, or by imprisonment in the state prison for life, or by life without the possibility of parole. (Pen. Code, § 799, subd. (a).)
5. Provides that there is no statute of limitations for specified sex crimes if the crime was committed on or after January 1, 2017, or if the crime was committed before that date but the statute of limitations had not expired on January 1, 2017. (Pen. Code, § 799, subd. (b)(1).)
6. Provides that prosecution for crimes punishable by imprisonment for eight years or more must be commenced within six years after commission of the offense. (Pen. Code, § 800.)
7. Provides that prosecution for other felonies punishable by less than eight years must be commenced within three years after commission of the offense. (Pen. Code, § 801.)
8. Provides that the statute of limitations for most misdemeanors is one year. (Pen. Code, § 802, subd. (a).)
9. Provides that notwithstanding any other time limitations, for specified sex crimes that are alleged to have been committed when the victim was under the age of 18, prosecution may be commenced any time prior to the victim's 40th birthday. (Pen. Code, § 801.1, subd. (a).)
10. Provides that notwithstanding any other time limitations, prosecution for a felony offense requiring sex offender registration shall be commenced within 10 years after commission of the offense. (Pen. Code, § 801.1, subd. (b).)
11. Provides that, notwithstanding any other limitation of time, a criminal complaint for specified sex crimes may be filed within one year of the date on which the identity of the suspect is conclusively established by deoxyribonucleic acid (DNA) testing, if specified conditions are met. (Pen. Code, § 803, subd. (g)(1).)
12. Provides that, notwithstanding any other limitation of time, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under 18 years of age, was the victim of specified sex offenses. (Pen. Code, § 803, subd. (f)(1).)
13. Provides that, notwithstanding any other limitation of time, a criminal complaint may be filed within one year of the date on which a hidden recording is discovered related to an invasion of privacy offense. (Pen. Code, § 803 (i).)
14. Provides that, notwithstanding any other limitation of time, if a person flees the scene of an accident, a criminal complaint alleging vehicular manslaughter may be filed one year after the person is initially identified by law enforcement as a suspect in the commission of that offense, but not later than six years after the commission of the offense. (Pen. Code, § 803, subd. (k).)
15. Provides that if more than one time period described in the statute of limitations scheme applies, the time for commencing an action is governed by that limitation period that expires the latest in time. (Pen. Code, § 803.6, subd. (a).)
16. States that a prosecution is commenced when one of the following occurs:
    
    1. An indictment or information is filed;
       
    2. A complaint charging a misdemeanor or infraction is filed;
       
    3. The defendant is arraigned on a complaint that charges him or her with a felony; or,
       
    4. An arrest warrant or bench warrant is issued. (Pen. Code, § 804.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Making the decision to have a child through Assisted Reproductive techniques is monumental to a couple, and having to experience this type of fraud can be a massive violation of the personal, fiduciary, and ethical realms. While this is an illegal practice in California, there is a glaring deficiency that the legislature can address. Current statute of limitations provides a 3 year window after commission of the offense to be prosecuted; however, it is common for victims to discover this way after the fact. For example, a case in Indiana was uncovered ranging from 26-40 years after the fraud occurred, which would mean this misconduct could not be prosecuted under California law. By changing the statute of limitations to 3 years from discovery, we can provide victims with a viable option for seeking justice."
   
2. Statute of Limitations: The statute of limitations requires a prosecution to be initiated within a certain period of time after the commission of a crime. A prosecution is initiated by filing an indictment or information, filing a complaint, certifying a case to superior court, or issuing an arrest or bench warrant. (Pen. Code, § 804.)
   
   The statute of limitations serves several important purposes in a criminal prosecution, including staleness, prompt investigation, and finality. The statute of limitations protects persons accused of crime from having to face charges based on evidence that may be unreliable, and from losing access to the evidentiary means to defend against the accusation. With the passage of time, memory fades, witnesses may die or otherwise become unavailable, and physical evidence can become unobtainable or contaminated.
   
   The statute of limitations also imposes a priority among crimes for investigation and prosecution. The deadline serves to motivate the police and to ensure against bureaucratic delays in investigating crimes. Additionally, the statute of limitations reflects society's lack of desire to prosecute crimes committed in the distant past. The interest in finality represents a societal evaluation of the time after which it is neither profitable nor desirable to commence a prosecution.
   
   These principals are reflected in court decisions. The United States Supreme Court has stated that statutes of limitation are the primary guarantee against bringing overly stale criminal charges. (United States v. Ewell (1966) 383 U.S. 116, 122.) There is a measure of predictability provided by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced. Such laws reflect legislative assessments of the relative interests of the state and the defendant in administering and receiving justice.
   
   More recently, in Stogner v. California (2003) 539 U.S. 607, the Court underscored the basis for statutes of limitation: "Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. And that judgment typically rests, in large part, upon evidentiary concerns - for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable." (Id. at p. 615.)
   

The failure of a prosecution to be initiated within the applicable period of limitation is a complete defense to the charge. The statute of limitations is jurisdictional and may be raised as a defense at any time, before or after judgment. (People v. Morris (1988) 46 Cal.3d 1, 13.) The defense may only be waived in limited circumstances. (See Cowan v. Superior Court (1996) 14 Cal.4th 367.) Furthermore, the court is required to construe application of the statute of limitations strictly in favor of the defendants. (People v. Zamora (1976) 18 Cal.3d 538, 574; People v. Lee (2000) 82 Cal.App.4th 1352, 1357-1358.)

The amount of time in which a prosecuting agency may charge an alleged defendant varies based on the crime. In general, the limitations period is related to the seriousness of the offense as reflected in the length of punishment established by the Legislature. (People v. Turner (2005) 134 Cal.App.4th 1591, 1594-1595; see, e.g., Pen. Code, §§ 799-805.) After a comprehensive review of criminal statutes of limitation in 1984, the Law Revision Commission recommended that the length of a "limitations statute should generally be based on the seriousness of the crime." (17 Cal. Law Revision Com. Rep. (1984) p. 313.) The Legislature overhauled the entire statutory scheme with this recommendation in mind. In People v. Turner, supra, 134 Cal.App.4th 1591, the court summarized the recommendations of the Law Revision Commission:

The use of seriousness of the crime as the primary factor in determining the length of the applicable statute of limitations was designed to strike the right balance between the societal interest in pursuing and punishing those who commit serious crimes, and the importance of barring stale claims. It also served the procedural need to provid[e] predictability and promote uniformity of treatment for perpetrators and victims of all serious crimes. The commission suggested that the seriousness of an offense could easily be determined in the first instance by the classification of the crime as a felony rather than a misdemeanor. Within the class of felonies, a long term of imprisonment is a determination that it is one of the more serious felonies; and imposition of the death penalty or life in prison is a determination that society views the crime as the most serious. (People v. Turner, supra, 134 Cal.App.4th at pp. 1594-1595, citations omitted.)

There are, however, some statutes of limitations not necessarily based on the seriousness of the offense. The Legislature has acknowledged that some crimes by their design are difficult to detect and may be immediately undiscoverable upon their completion. So for example, crimes involving fraud, breach of a fiduciary duty, bribes to a public official or employee, and those involving hidden recordings have statutes of limitations which begin to run upon discovery that the crime was committed. (See Pen. Code, § 803, subd. (c), see also Pen. Code, § 803, subd. (e).)

1. Fertility Fraud Cases: In the 1990’s, two doctors were charged with stealing embryos and eggs belonging to women who sought fertility treatment at the University of California Irvine Center for Reproductive Health and implanting them in other women without the consent of the donors. (Carollo, Fertility Doctor on the Run Arrested in Mexico, ABC News, Dec. 28, 2010, available at: https://abcnews.go.com/Health/ReproductiveHealth/fugitive-fertility-doctor-ricardo-asch-arrested-mexico/story?id=12492575, [as of Mar. 2, 2020].) That case, which involved dozens of victims (Id.), led California to introduce legislation which criminalized the misuse of sperm, embryo and ova. SB 1555 (Hayden) Chapter 865, Statutes of 1996, made it illegal for any person to knowingly use sperm, embryo and ova in manner that was inconsistent with the consent of the donor, and imposed prison penalties for a violation of that provision.
   
   According to the Society for Assisted Reproductive Technology (SART), California is one of just three states that criminalizes fertility fraud. (SART website, https://www.sart.org/news-and-publications/news-and-research/legally-speaking/fertility-fraud-an-update/). According to the SART:

“In the typical fertility fraud fact pattern, an adult learns that he or she has different paternal genetic relations and/or unexpected half-genetic siblings. This adult may have already known that he/she was donor-conceived or may discover that fact through the genetic testing process. Conversations with these new relations suggest that something just isn’t right. In some cases, half-genetic siblings find that their parents all sought treatment from the same physician, and in others, their investigative efforts reveal a genetic relationship to the physician. When asked about the circumstances of their fertility treatment, their mothers state that they were told (based on their history of infertility) that the sperm would come from their husbands or anonymous medical residents resembling their husbands. Doctor-conceived individuals and their parents have sought accountability through a number of routes, including speaking with journalists and other media personalities, seeking state law reform, filing a complaint with a state medical board, reporting the physician to a prosecutor or a state Attorney General, pursuing a private legal settlement, and filing a civil tort suit.” (Id.)

Although the crimes are rare, the offense of using or implanting reproductive material in a manner that is inconsistent with the will of the donor is one that, by its very nature, is difficult to detect at the time the offense occurs. As indicated by the SART, the typical offense is not likely to be discovered until a person discovers a previously-unknown familial relationship through genetic testing. Such testing may not occur for years or even decades after the moment when a doctor or medical professional fraudulently implanted sperm or an embryo without the consent of the donor. This bill would allow a criminal complaint to be filed within one year of the discovery of the offense and would not require that a criminal complaint be filed within three years of the commission of the fraudulent implantation. This would appear to be consistent with other extended limitation periods for offenses that are unlikely to be discovered until some number of years after the offense is committed.

1. Ex Post Facto: In Stogner v. United States, supra, 539 U.S. 607 the Supreme Court ruled that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. (Id. at pp. 610-611, 616.) However, extension of an existing statute of limitations is not ex post facto as long as the prior limitations period has not expired. (Id. at pp. 618-619.) Under these principles, the extended statute of limitations provided for in this bill could not be applied to cases in which the period has expired. This bill includes a provision that specifies that it is not intended to apply retroactively, which is consistent with the holding of the United States Supreme Court in Stogner.
   
2. Expanded Statute of Limitation in Civil Lawsuits: In addition to the expansion of the statute of limitations for criminal offenses pertaining to the misuse of sperm, ova, and embryos, this bill would expand the statute of limitations for civil lawsuits resulting from similar conduct. This bill was double-referred to the Assembly Judiciary Committee. A more complete analysis of the civil lawsuit portion of this bill will be completed in that committee.
3. Argument in Opposition: According to California Attorneys for Criminal Justice: “This bill would extend the statute of limitations for crimes involving the misuse of sperm, ova or embryos. The current limitations period is three years, but AB 2014 would extend this period for forty years or more.

“By using the word, “knowingly,” this statute requires the prosecution to prove that the person using the assisted reproduction technology actually knew that the donor had not consented to the way the sperm, ova or embryo were used. In addition, the person using the assisted reproduction technology must have actually known that the recipient of implanted sperm, ova or embryos had not consented to the implantation.

“The best evidence of whether someone actually knew whether consent had been given is the records of the fertility clinic where the procedure was performed. Either there is a written consent form on file, or there is not.

“However, as time passes, records can disappear. Computer storage devices can be damaged or lost or their files can be erased. Paper records can be lost or destroyed. And of course, human memory degrades over time.

“The current statute of limitations period of three years is appropriate for violations of Penal Code Section 367g. Records of consent can be expected to last that long.

“However, AB 2014 would extend the limitations period to ‘within three years after the discovery of the offense.’ There is no maximum period.”

1. Related Legislation: SB 239 (Chang), would allow a criminal complaint to be filed within three years after the discovery of offense, for a crime involving the unauthorized access to computers.
2. Prior Legislation: SB 1555 (Hayden), Chapter 865, Statutes of 1996, made it a felony for anyone to knowingly use sperm, ova, or embryos in assisted reproduction technology, for any purpose other than that indicated by the sperm, ova, or embryo provider’s signature on a written consent form, or to implant sperm, ova, or embryos, through the use of assisted reproduction technology, into a recipient who is not the sperm, ova, or embryo provider, without the signed written consent of the sperm, ova, or embryo provider and recipient.
   

REGISTERED SUPPORT / OPPOSITION:

Support

Crime Victims United of California

Oppose

California Attorneys for Criminal Justice

Analysis Prepared by:

Matthew Fleming / PUB. S. / (916) 319-3744