Legislators Try to Aid Fertility Clinics’ Users : Enforcement: State Sen. Bill Leonard proposes to make it easier for patients to sue for theft, while a congressman pushes U.S. agency to implement rules already approved.

A state senator introduced a bill Thursday that would pave the way for patients whose eggs are misappropriated to sue their doctors for theft--the first in what could be a flurry of legislative responses to the UC Irvine fertility scandal.

Meanwhile, a U.S. congressman has accused federal health officials of refusing to enforce existing law regulating fertility clinics, citing the UC Irvine situation as a prime example of what can happen when the industry is left to its own devices.

In a June 27 letter to U.S. Department of Health and Human Services Secretary Donna E. Shalala released this week, Rep. Ron Wyden (D-Ore.) protested the agency’s decision not to follow through with implementation of a 1992 law requiring clinics to report their success rates to the federal government. The law also requires the government to establish certification standards to protect patients.

A bill introduced Thursday by state Sen. Bill Leonard (R-San Bernardino) would remove a legal barrier possibly preventing patients from successfully suing UC Irvine and its fertility clinic doctors for alleged theft of human eggs.

As the case law in California now stands, Leonard said, patients do not have the right to damages for theft when parts of their body are taken without permission. He cited a California Supreme Court decision in which a patient with a rare form of leukemia was denied compensation, although UC doctors profited by taking his body tissue for research without his consent.

Leonard said he is hoping his bill can be applied retroactively in the case of UC Irvine.

UC officials have accused doctors at the UC Irvine Center for Reproductive Health of more than 30 instances of egg misappropriation. The three physicians--Ricardo H. Asch, Jose P. Balmaceda and Sergio C. Stone--deny knowingly engaging in any wrongdoing.

Leonard’s bill is an urgency measure, meaning that it needs a two-thirds vote for approval and would go into effect as soon as it is signed.

“I think it’s important to quickly respond to the issue,” Leonard said. “I think it’s important that the victims be allowed their days in court as soon as possible. This was the only way to get a hearing sometime this summer.”

Passage of the bill would likely expand UC Irvine’s already considerable vulnerability to legal action in the scandal. At least six former patients of the fertility clinic have sued or notified UC Irvine that they intend to file lawsuits.

*

Leonard said he believes civil remedies will be more effective than criminal laws in stopping abuses in the fertility industry, because they are more easily enforced. The bill would require doctors to get patients’ consent for any removal and expected uses of eggs, organs and other body parts. It would also allow a patient from whom consent was not received to sue the doctor and recover three times the profit the doctor received from the unapproved use, or at least $10,000.

Other legislators, including state Sen. Tom Hayden (D-Santa Monica), are expected to introduce measures soon that define egg theft specifically as a crime. Since the UC Irvine scandal broke, local law enforcement officials have pointed out the possible difficulty of prosecuting egg theft as a crime because it is not mentioned in the law books.

Rep. Wyden told Shalala in his June 27 letter that it would be a mistake to not enforce existing law regulating the fertility industry. He said the fertility industry had worked hard to implement the 1992 law he authored, and he questioned federal officials’ decision not to complete implementation for financial reasons.

A spokesman for Shalala’s office said the secretary had not had a chance to review Wyden’s letter and would have no immediate comment.

But Kay Golan, a spokeswoman for the U.S. Centers for Disease Control, said the 1992 law did not provide any funding mechanisms, and her agency is successfully working with industry groups to help them regulate themselves on a voluntary basis. She said the law could not have prevented improprieties of the sort alleged at UC Irvine because it does not allow federal oversight over private medical practices.

“Even though no funds were ever appropriated, the CDC has worked very closely with professional associations--especially the American Society for Reproductive Medicine--to develop standard definitions and to review their reporting mechanisms. . . . We feel they have been very responsible and have done a very credible job,” Golan said.