(a) For purposes of this chapter, "donor," "person," "tissue,"
"transplantation," and "department" shall have the meaning as
defined for those terms in Section 1635.
(b) For purposes of this chapter, "HIV" shall mean human
immunodeficiency virus.
(a) Except as provided in subdivision (c) or (d), no
tissues shall be transferred into the body of another person by means
of transplantation, unless the donor of the tissues has been
screened and found nonreactive by laboratory tests for evidence of
infection with human immunodeficiency virus (HIV), agents of viral
hepatitis (HBV and HCV), and syphilis. For tissues that are rich in
viable leukocytes, the tissue shall be tested for evidence of
infection with human T lymphotrophic virus (HTLV) and found
nonreactive. The department may adopt regulations requiring
additional screening tests of donors of tissues when, in the opinion
of the department, the action is necessary for the protection of the
public, donors, or recipients.
(b) Notwithstanding subdivision (a), infectious disease screening
of blood and blood products shall be carried out solely in accordance
with Article 2 (commencing with Section 1602.5) of Chapter 4.
(c) All donors of sperm shall be screened and found nonreactive as
required under subdivision (a), except in the following instances:
(1) A recipient of sperm, from a sperm donor known to the
recipient, may waive a second or other repeat testing of that donor
if the recipient is informed of the requirements for testing donors
under this section and signs a written waiver.
(2) A recipient of sperm may consent to therapeutic insemination
of sperm or use of sperm in other assisted reproductive technologies
even if the sperm donor is found reactive for hepatitis B, hepatitis
C, syphilis, HIV, or HTLV if the sperm donor is the spouse of,
partner of, or designated donor for that recipient. The physician
providing insemination or assisted reproductive technology services
shall advise the donor and recipient of the potential medical risks
associated with receiving sperm from a reactive donor. The donor and
the recipient shall sign a document affirming that each comprehends
the potential medical risks of using sperm from a reactive donor for
the proposed procedure and that each consents to it. Copies of the
document shall be placed in the medical records of the donor and the
recipient.
(3) (A) Sperm whose donor has tested reactive for syphilis may be
used for the purposes of insemination or assisted reproductive
technology only after the donor has been treated for syphilis. Sperm
whose donor has tested reactive for hepatitis B may be used for the
purposes of insemination or assisted reproductive technology only
after the recipient has been vaccinated against hepatitis B.
(B) (i) Sperm whose donor has tested reactive for HIV or HTLV may
be used for the purposes of insemination or assisted reproductive
technology for a recipient testing negative for HIV or HTLV only
after the donor's sperm has been effectively processed to minimize
the infectiousness of the sperm for that specific donation and where
informed and mutual consent has occurred.
(ii) Not later than January 1, 2014, the department shall adopt
regulations regulating facilities that perform sperm processing,
pursuant to this subparagraph, that prescribe standards for the
handling and storage of sperm samples of carriers of HIV, HTLV, or
any other virus as deemed appropriate by the department. The
department may propose to adopt, as initial regulations, the
recommendations made within the "Guidelines for Reducing Risk of
Viral Transmission During Fertility Treatment" as published by the
American Society for Reproductive Medicine. Notice of the department'
s proposed adoption of the regulations shall be posted on the
department's Internet Web site for at least 45 days. Public comment
shall be accepted by the department for at least 30 days after the
conclusion of the 45-day posting period. If a member of the public
requests a public hearing during the 30-day comment period, the
hearing shall be held prior to the adoption of the regulations. If no
member of the public requests a public hearing, the regulations
shall be deemed adopted at the conclusion of the 30-day comment
period. Comments received shall be considered prior to the adoption
of the final initial regulations. The department may modify any
guidance published by the American Society for Reproductive Medicine.
Adoption of initial regulations by the department pursuant to this
subdivision shall not be subject to the rulemaking requirements of
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code and written responses to public
comments shall not be required. Updates to the regulations shall be
adopted pursuant to the same process. Until the department adopts
these regulations, facilities that perform sperm processing pursuant
to this section shall follow facility and sperm processing guidelines
for the reduction of viral transmission developed by the American
Society for Reproductive Medicine. Nothing in this section shall
prevent the department from monitoring and inspecting facilities that
process sperm to ensure adherence to the regulations, or, until
regulations are adopted, to the guidelines set forth by the American
Society for Reproductive Medicine.
(iii) Prior to insemination or other assisted reproductive
technology services, the physician providing the services shall
inform the recipient of sperm from a spouse, partner, or designated
donor who has tested reactive for HIV or HTLV of all of the
following:
(I) That sperm processing may not eliminate all of the risks of
HIV or HTLV transmission.
(II) That the sperm may be tested to determine whether or not it
is reactive for HIV or HTLV.
(III) That the recipient must provide documentation to the
physician providing insemination or assisted reproductive technology
services prior to treatment that she has established an ongoing
relationship with another physician to provide for her medical care
during and after completion of fertility services.
(IV) The recommendations made within the "Guidelines for Reducing
the Risk of Viral Transmission During Fertility Treatment" published
by the American Society for Reproductive Medicine regarding followup
testing for HIV and HTLV after use of sperm from an HIV or HTLV
reactive donor and have the recommendations regarding followup
testing be documented in the recipient's medical record.
(iv) The physician providing insemination or assisted reproductive
technology services shall also verify, and document in the recipient'
s medical record, that the donor of sperm who tests reactive for HIV
or HTLV is under the care of a physician managing the HIV or HTLV.
(v) The physician providing insemination or assisted reproductive
technology services shall recommend to the physician who will be
providing ongoing care to the recipient recommended followup testing
for HIV and HTLV according to the "Guidelines for Reducing the Risk
of Viral Transmission During Fertility Treatment" published by the
American Society for Reproductive Medicine, which shall be documented
in the recipient's medical record.
(vi) In the event that the recipient becomes HIV or HTLV positive,
the physician assuming ongoing care of the recipient shall treat or
provide information regarding referral to a physician who can provide
ongoing treatment of the HIV or HTLV.
(4) A recipient of sperm donated by a sexually intimate partner of
the recipient for reproductive use may waive a second or repeat
testing of that donor if the recipient is informed of the donor
testing requirements of this section and signs a written waiver. For
purposes of this paragraph, "sexually intimate partner of the
recipient" includes a known or designated donor to whose sperm the
recipient has previously been exposed in a nonmedical setting in an
attempt to conceive.
(d) Subdivision (a) shall not apply to the transplantation of
tissue from a donor who has not been tested or, with the exception of
HIV and HTLV, has been found reactive for the infectious diseases
listed in subdivision (a) or for which the department has, by
regulation, required additional screening tests, if both of the
following conditions are satisfied:
(1) The physician and surgeon performing the transplantation has
determined any one or more of the following:
(A) Without the transplantation the intended recipient will most
likely die during the period of time necessary to obtain other tissue
or to conduct the required tests.
(B) The intended recipient already is diagnosed with the
infectious disease for which the donor has tested positive.
(C) The symptoms from the infectious disease for which the donor
has tested positive will most likely not appear during the intended
recipient's likely lifespan after transplantation with the tissue or
may be treated prophylactically if they do appear.
(2) Consent for the use of the tissue has been obtained from the
recipient, if possible, or if not possible, from a member of the
recipient's family, or the recipient's legal guardian. For purposes
of this section, "family" shall mean spouse, adult son or daughter,
either parent, adult brother or sister, or grandparent.
(e) The penalties of Section 1621.5 shall not apply to a sperm
donor covered under subdivision (c).
(f) Human breast milk from donors who test reactive for agents of
viral hepatitis (HBV and HCV), HTLV, HIV, or syphilis shall not be
used for deposit into a milk bank for human ingestion in California.
(a) No physician and surgeon shall be subject to liability
for damages for any cause of action based solely on the use of sperm
donated by a sexually intimate partner of the recipient if both of
the following conditions are met:
(1) The physician and surgeon provides insemination or assisted
reproductive technology services and has obtained the informed
consent of the recipient, who waives second or other repeat testing
of the sexually intimate partner and acknowledges and accepts the
risks of using sperm from a sexually intimate partner who has not
undergone repeat testing, in accordance with paragraph (1) of
subdivision (c) of Section 1644.5.
(2) The physician and surgeon complies with the applicable
requirements specified in Section 1644.5.
(b) No physician and surgeon shall be subject to disciplinary
action against his or her professional license, or subject to peer
review by a professional association peer review body, as defined in
clause (iii) of subparagraph (B) of paragraph (1) of subdivision (a)
of Section 805 of the Business and Professions Code, because the
physician and surgeon used sperm donated by a sexually intimate
partner of the recipient in providing insemination or assisted
reproductive technology services if both of the following conditions
are met:
(1) The physician and surgeon has obtained the informed consent of
the recipient who waives second or other repeat testing of the
sexually intimate partner and acknowledges and accepts the risks of
using sperm from a sexually intimate partner who has not undergone
repeat testing, in accordance with paragraph (1) of subdivision (c)
of Section 1644.5.
(2) The physician and surgeon complies with the applicable
requirements specified in Section 1644.5.
(c) A tissue bank that is owned and operated by a physician and
surgeon shall not be subject to disciplinary action against its
license because of the use of sperm donated by a sexually intimate
partner of the recipient in providing insemination or assisted
reproductive technology services if both of the following conditions
are met:
(1) A physician and surgeon affiliated with the tissue bank has
obtained the informed consent of the recipient, who waives second or
other repeat testing of the sexually intimate partner and
acknowledges and accepts the risks of using sperm from a sexually
intimate partner who has not undergone repeat testing, in accordance
with paragraph (1) of subdivision (c) of Section 1644.5.
(2) The physician and surgeon complies with the applicable
requirements specified in Section 1644.5.
(d) Nothing in this section shall create a duty for a physician
and surgeon to use sperm donated by a sexually intimate partner of
the recipient in providing insemination or assisted reproductive
technology services if the physician and surgeon reasonably concludes
that the insemination or services do not meet the 2008 American
Society for Reproductive Medicine guidelines for gamete and embryo
donation.
(e) Nothing in this section shall be construed to affect any
liability that may be imposed pursuant to a federal rule or
regulation when a physician and surgeon, or tissue bank provides
insemination or assisted reproductive technology services.
(f) For purposes of this section, "sexually intimate partner"
includes a known or designated donor to whose sperm the recipient has
previously been exposed in a nonmedical setting in an attempt to
conceive.