Bill Drafted to Safeguard Human Eggs : Fertility: Measure would make it a felony to transfer embryos, eggs without donor consent.

State Sen. Tom Hayden (D-Santa Monica) has drafted a bill that would make it a felony for physicians to transfer or implant human eggs or embryos without the consent of donors.

Hayden crafted the proposed legislation after Orange County prosecutors complained that they had no effective way to charge a trio of UC Irvine fertility experts who allegedly took patients’ eggs and embryos without permission and gave them to other patients, Hayden aide Stephanie Rubin said.

“Under current law, in order to prosecute it as a theft or embezzlement, they would have to assign a value to the embryos,” Rubin said. “We drafted the bill to make it easier for district attorneys to prosecute these types of cases.”

A draft of the bill, which Hayden hopes to introduce during the next legislative session, will be unveiled Monday during a third set of state Senate hearings into the widening fertility scandal, Rubin said.

University officials have accused the three doctors, who formerly ran the lauded UCI Center for Reproductive Health, of as many as 40 instances of egg and embryo misappropriation at three Southern California medical centers. The doctors--Ricardo H. Asch, Jose P. Balmaceda and Sergio C. Stone--have denied knowingly engaging in any wrongdoing.

Monday’s hearings by the Senate Select Committee on Higher Education also will focus on a bill introduced last month by Sen. Bill Leonard (R-San Bernardino) that would remove a legal barrier that could prevent patients from successfully suing UCI and its fertility clinic doctors over alleged thefts of human eggs.

Under California case law, patients cannot sue for damages when parts of their body are taken without permission, said Leonard, who hopes his bill can be applied retroactively to the UC Irvine scandal.

The bill will be debated by the Senate Judiciary Committee early next year.

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Hayden’s proposed bill was applauded Tuesday by Orange County Deputy Dist. Atty. Chuck Middleton, who said he has searched unsuccessfully for a means to prosecute the alleged egg theft.

“We could not find anything in the statutes that would closely resemble the activities at the fertility clinic,” Middleton said. Current law “just doesn’t put any substance on how important [egg theft] is.”

Hayden’s bill would make the transfer of eggs or embryos without the patient’s consent a theft and battery.

Middleton said the bill, should it become law, could not be used against Asch, Balmaceda and Stone but would be a potent deterrent to other fertility specialists. Physicians convicted of felony charges under the proposed statute could face 16 months to three years in prison and lose their licenses, he said.

“When they know, if they do something wrong in that area that it is not only an ethical problem but criminal, it’s a deterrent that will be heard loud and clear,” Middleton said.

Although the Medical Board of California is responsible for policing California physicians, the justice system “has to be the last stand as far as the criminal conduct a doctor enters into,” he said.

A tough stand by the justice system may also encourage the medical community to increase regulation of the fertility industry, said Middleton, who serves on the bioethics committee at Children’s Hospital of Orange County.

“Politically, they look to see how the public reacts to these problems,” he said.

Larry R. Feldman, who represents several couples who believe their eggs were stolen, also lauded Hayden’s proposed legislation but hoped it could be broadened to make “stealing any kind of genetic material from any patient unlawful.”

“I wouldn’t make it case specific,” Feldman said. “A broader statute would have a deterrent effect on any physician trying to make money on stealing this kind of genetic material.”

Rubin said Hayden will be soliciting opinion from state prosecutors and others on the bill in coming months.

Monday’s hearings will also include testimony from UC San Diego officials who announced July 28 that Asch had victimized at least five patients in a human egg and embryo swapping scheme at the university. The officials also indicated they could not account for the disposition of 17 other patients’ eggs or embryos in the school’s Assisted Reproductive Technologies program.