Improper Use of Embryos, Eggs Targeted

In the strongest legislative response yet to the widening fertility scandal at UC Irvine, state Sen. Tom Hayden (D-Santa Monica) on Thursday introduced a bill that would make it a felony to transfer or implant human eggs or embryos without the informed consent of both donor and recipient.

Noting that human eggs were taken from at least 60 families without their consent, Hayden said that prosecutors have been stymied in efforts to prosecute a once-elite team of specialists because current state law does not specifically address the taking of such material.

“There is a loophole in our criminal law, which permits this unconscionable violation of a couple’s personal decision about what to do with their human eggs and embryos,” Hayden said in announcing the bill. “This clear ethical violation also needs to be punished by time in jail to put people on notice that informed consent must be obtained before medical personnel donate a woman’s eggs to another family.”

Hayden, chairman of the Senate Select Committee on Higher Education, first convened hearings into the scandal last June, when a dizzying array of witnesses provided details into the stealing of eggs and embryos by doctors at the once-prestigious Center for Reproductive Health.

The physicians who ran the clinic--Ricardo H. Asch, Jose P. Balmaceda and Sergio Stone--are the subject of at least seven investigations into alleged misappropriation of eggs and embryos, insurance fraud and financial wrongdoing. All have denied any deliberate malfeasance.

Balmaceda and former clinic head Asch, both natives of South America, have left the country and are working at medical clinics in Latin America. Asch recently gave an extensive deposition--in response to a myriad of civil lawsuits--in Tijuana.

At least 35 former patients have sued Asch, UCI, the UC Board of Regents or UC San Diego, where Asch assisted in a reproductive clinic and where he was accused last month of providing human reproductive tissue to a University of Wisconsin researcher without patients’ permission.

So far, neither Asch nor anyone else has been indicted in connection with the scandal, although the Orange County district attorney’s office as well as the FBI and the U.S. attorney’s office have confiscated material from him and the other doctors being investigated.

Criminal investigators could not be reached for comment on Thursday.

For Hayden’s bill to become law, it must pass both the Democrat-controlled state Senate and the Republican-held Assembly, where it may encounter efforts at compromise but apparently no opposition. Some changes, in fact, may be offered to toughen the measure.

A spokesman for state Sen. Rob Hurtt(R-Garden Grove) said the Republican leader in the Senate supports the measure but favors even tougher punishment than that proposed by Hayden.

“This needs to be criminalized and [Hurtt] thinks a felony is appropriate,” Rob Stutzman, Hurtt’s spokesman, said Thursday. “But the senator doesn’t think three, four or five years is a long enough prison term, considering what these doctors did to these women. . . .

“The grief and the invasion of privacy perpetrated upon the victims in the UCI scandal should dictate a much stiffer prison term that what is being proposed in Sen. Hayden’s bill, as I understand it.”

Hayden’s proposal would make the taking of human eggs without consent a felony punishable by three, four or five years in state prison, coupled with a fine of no more than $50,000.

Since no law was in place at the time the alleged misdeeds were taking place, from 1986 to 1994, some experts believe that Asch, Balmaceda and Stone may escape criminal charges altogether, while others are surprised that more stringent legislation was so slow in coming.

Hayden’s proposed bill is the first to address criminal wrongdoing. Last July, state Sen. Bill Leonard (R-San Bernardino) introduced a bill that would pave the way for patients whose eggs are misappropriated to sue their doctors for theft--the first response from Sacramento.

Last June, Rep. Ron Wyden (D-Ore.) accused federal health officials of refusing to enforce existing federal law regulating fertility clinics, citing the UCI situation as a prime example of what can happen when the industry is left to its own devices.

In a letter to U.S. Department of Health and Human Services Secretary Donna E. Shalala, Wyden 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.

“It could very well” be a deterrent, Dr. Joseph Gambone, director of the fertility program at UCLA Medical Center, said of Hayden’s proposed legislation.

“In most clinics,” Gambone said, “one or two individuals make all the decisions. As soon as you start to introduce legislation, larger numbers of people are concerned to make sure all the I’s are dotted and the Ts are crossed. To that extent, I think it is effective.”

But others were skeptical.

“If [the proposed bill] turns out to be the toughest response to the mess at UCI, I don’t think it’s enough,” said Arthur Caplan, a biomedical ethicist at the University of Pennsylvania. “Common sensically, it should be illegal to steal eggs and embryos. People who haven’t followed this closely might say, ‘What? You need a special law for this?’ ”

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Times staff writers Len Hall and Julie Marquis contributed to this report.