LRB-4771/1
MGD&GMM:jld:jf
2001 - 2002 LEGISLATURE
January 29, 2002 - Introduced by Senators Lazich, S. Fitzgerald and Roessler,
cosponsored by Representatives
Freese, Suder, J. Fitzgerald, Grothman,
Gunderson, Gundrum, Hines, Kestell, Krawczyk, Kreibich, Leibham,
Loeffelholz, McCormick, Nass, Ott, Owens, Pettis and Walker. Referred to
Committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.
SB404,1,8
1An Act to create 146.347 and 940.17 of the statutes;
relating to: intentionally
2causing the death of an in vitro human embryo, nontherapeutic research
3involving an in vitro human embryo, the use of cells or tissue derived from an
4in vitro human embryo, the purchase or sale of in vitro human embryos,
5requesting the joint legislative council to conduct a study on how to reduce the
6number of in vitro human embryos created by assisted reproductive services
7clinics and how to facilitate the adoption of unused in vitro human embryos, and
8human cloning and providing penalties.
Analysis by the Legislative Reference Bureau
Prohibitions relating to in vitro human embryos
Through a number of separate provisions, current law prohibits causing the
death of an unborn child, other than through a legally authorized induced abortion.
The penalties applicable to these prohibitions vary. For example, a person who
intentionally causes the death of an unborn child may be sentenced to life
imprisonment, while a person who causes the death of an unborn child by the
negligent operation or handling of a vehicle may be fined not more than $10,000 or
imprisoned for not more than five years or both. Current law also prohibits a person
from intentionally performing an abortion after the fetus or unborn child reaches
viability, as determined by the reasonable medical judgment of the woman's
attending physician. A person who violates this prohibition may be fined not more
than $10,000 or imprisoned for not more than five years or both.
Under this bill, no person may do any of the following: 1) intentionally cause
the death of an in vitro human embryo; 2) intentionally subject an in vitro human
embryo to a substantial risk of injury or death for the purpose of "nontherapeutic
human embryo research," which is defined as research involving an in vitro human
embryo that is not intended to help protect or preserve the life or protect, preserve,
or promote the health of the in vitro human embryo; 3) create an in vitro human
embryo outside of a woman's body for the purpose of nontherapeutic human embryo
research; 4) use, transfer, or acquire any living cell or tissue that the actor knows was
obtained through conduct that is described in the preceding three prohibitions; 5)
with the knowledge that any person will intentionally cause the death of the in vitro
human embryo, transfer an in vitro human embryo to another person; 6) with the
knowledge that the in vitro human embryo will intentionally be subjected to a
substantial risk of injury or death for the purpose of nontherapeutic human embryo
research, transfer an in vitro human embryo to another person; or 7) purchasing or
selling an in vitro human embryo. The bill defines "in vitro human embryo" as a
human embryo living outside of a woman's body, regardless of how the embryo is
derived and regardless of whether the embryo has undergone cryopreservation
(freezing), which is a process regularly used by clinics that provide assisted
reproductive services (clinics) to preserve embryos for implantation at a later date
in a woman's uterus. A person who violates one of the prohibitions contained in the
bill relating to in vitro human embryos may be fined not more than $10,000 or
imprisoned for not more than five years or both.
The prohibitions described in the preceding paragraph apply regardless of
whether there is any contract currently in effect relating to the conduct involved. In
addition, the fourth prohibition applies even if the conduct from which the cells or
tissues were derived has already occurred or occurs outside of the state. On the other
hand, the bill excepts the following conduct from all of the prohibitions described in
the preceding paragraph, other than the prohibition on purchasing or selling an in
vitro human embryo: 1) cryopreserving an in vitro human embryo, if the actor uses
all available means to protect and preserve the life and protect, preserve, and
promote the health of the embryo (the "cryopreservation exception"); 2) thawing an
in vitro human embryo, if the thawing is done to facilitate a live birth and if the actor
uses all available means to protect and preserve the life and protect, preserve, and
promote the health of the embryo (the "thawing exception"); 3) implanting or
attempting to implant an in vitro human embryo in a woman's uterus, if the embryo
was created by fertilization and if the implantation or attempted implantation is
done for the purpose of facilitating a live birth (the "implantation exception"); and
4) transferring or acquiring an in vitro human embryo, if the actor intends that the
embryo be cryopreserved, thawed, or implanted consistent with the
cryopreservation, thawing, or implantation exceptions. The prohibitions listed in
the preceding paragraph -- again, excluding the prohibition on purchasing or selling
a human embryo -- also do not apply to the donor of any sperm cell or egg cell from
which an in vitro human embryo is derived.
Human cloning
This bill also prohibits human cloning; attempting to perform human cloning;
or transferring or acquiring a human embryo produced by human cloning or any cell,
tissue, or product derived from such an embryo. The bill defines "human cloning" as
introducing nuclear material from one or more human somatic cells (a human cell
with a complete set of chromosomes) into an egg cell, the nuclear material of which
has been removed or inactivated, so as to produce a living organism, including a
human embryo, having genetic material that is virtually identical to the genetic
material of an existing or previously existing human organism. A person who
violates one of the prohibitions against human cloning shall be fined not more than
$10,000 and may be imprisoned for not more than ten years. A person who violates
one of the cloning prohibitions is also subject to a civil monetary penalty (a forfeiture)
of $1,000,000 if the person derives a pecuniary gain from the violation, unless the
person's gross pecuniary gain exceeds $500,000. In that case, the amount of the
forfeiture must be between $1,000,000 and twice the amount of the person's gross
pecuniary gain.
Legislative council study relating to in vitro human embryos
The bill requires the joint legislative council to study the issues relating to the
adoption of in vitro human embryos and the regulation of clinics and to prepare
proposed legislation with a view toward accomplishing all of the following: 1)
reducing the number of in vitro human embryos created by clinics to a reasonable
number needed for reproductive purposes; 2) facilitating the adoption and
implantation of unused in vitro human embryos created by clinics; 3) providing a
procedure by which those unused in vitro human embryos may be relinquished by
their genetic parents for adoption and implantation; and 4) requiring that persons
receiving assisted reproductive services at clinics be informed of the option of
relinquishing their unused in vitro human embryos for adoption and implantation.
The joint legislative council shall include in its study a study of current law relating
to the adoption of children and other current law that might be relevant to the
adoption of in vitro human embryos with a view toward modeling the proposed
legislation relating to the adoption of in vitro human embryos after that current law.
The joint legislative council must report its findings, conclusions, and
recommendations to the legislature by January 1, 2003.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB404, s. 1
1Section
1. 146.347 of the statutes is created to read:
SB404,3,2
2146.347 Human cloning. (1) In this section:
SB404,4,2
1(a) "Asexual reproduction" means reproduction not initiated by the union of an
2oocyte and a sperm.
SB404,4,43
(b) "Enucleated oocyte" means a fertilized or unfertilized oocyte, the nuclear
4material of which has been removed or inactivated.
SB404,4,85
(c) "Human cloning" means asexual reproduction accomplished by introducing
6nuclear material from one or more human somatic cells into an enucleated oocyte so
7as to produce a living organism having genetic material that is virtually identical to
8the genetic material of an existing or previously existing human organism.
SB404,4,99
(d) "Human embryo" has the meaning given in s. 940.17 (2) (a).
SB404,4,1010
(e) "Living organism" includes a human embryo.
SB404,4,1311
(f) "Somatic cell" means a cell that has a complete set of chromosomes and that
12is obtained or derived from a living or dead human organism at any stage of
13development.
SB404,4,14
14(2) (a) No person may knowingly do any of the following:
SB404,4,1515
1. Perform or attempt to perform human cloning.
SB404,4,1716
2. Transfer or acquire for any purpose a human embryo produced by human
17cloning or any cell, tissue, or product derived from such an embryo.
SB404,4,2118
(b) If a person violates par. (a) by creating, attempting to create, transferring,
19or acquiring more than one human embryo, the creation, attempted creation,
20transfer, or acquisition of each individual human embryo constitutes a separate
21violation.
SB404,4,23
22(3) Any person who violates sub. (2) shall be fined not more than $10,000 and
23may be imprisoned for not more than 10 years.
SB404,4,25
24(4) (a) Except as provided in par. (b), any person who violates sub. (2) and who
25derives a pecuniary gain from the violation shall be required to forfeit $1,000,000.
SB404,5,4
1(b) Any person who violates sub. (2) and who derives a pecuniary gain of more
2than $500,000 from the violation shall be required to forfeit not less than $1,000,000
3nor more than an amount equal to twice the gross amount of the person's pecuniary
4gain.
SB404, s. 2
5Section
2. 940.17 of the statutes is created to read:
SB404,5,7
6940.17 In vitro human embryos. (1) (a)
Legislative findings. The
7legislature finds that:
SB404,5,108
1. There are no laws in this state specifically regulating the procedures used
9at a clinic that provides assisted reproductive services for infertile couples, other
10couples, or individuals using the clinic's services.
SB404,5,1311
2. The procedures used at an assisted reproductive services clinic in this state
12are governed by a private contract between the clinic and the couple or individual
13using the clinic's services.
SB404,5,1614
3. It is quite common for an assisted reproductive services clinic to create more
15human embryos than the number needed to reasonably meet the reproductive
16purposes of the couples or individuals using its services.
SB404,5,2017
4. The private contract usually contains a provision regarding the disposition
18of human embryos not used by the couple or individual. Often this provision permits
19the couple or individual to choose to have the unused human embryos destroyed or
20donated for research.
SB404,5,2421
5. It is also possible for the couple or individual to choose to have the unused
22human embryos donated to another couple or individual for implantation into the
23woman's uterus for the purpose of having a child. This option is often part of the
24private contract.
SB404,6,3
16. The donation of unused human embryos for adoption by another couple or
2individual is a positive, life-affirming alternative to having the embryos destroyed
3or donated for research.
SB404,6,64
7. A substantial number of citizens have objections to the destruction of any
5human embryo or the use of any human embryo for nontherapeutic research that
6subjects the embryo to a substantial risk of injury or death.
SB404,6,137
(b)
Policy declaration. It is declared to be the public policy of this state that a
8human embryo living outside a woman's body should be protected from intentional
9destruction or research that causes the embryo's death or unnecessarily subjects the
10embryo to a substantial risk of harm. The legislature reaffirms the positive value
11of human life at all stages of development and promotes the adoption of unused
12human embryos. A human embryo is a human being at an early stage of
13development, not an item of property.
SB404,6,1514
(c)
Construction of act. The following statutory provisions shall be broadly
15construed to effect the objectives set forth in this section.
SB404,6,16
16(2) In this section:
SB404,6,2117
(a) "Human embryo" means a human organism derived by fertilization,
18parthenogenesis, cloning, or any other means from one or more human gametes or
19human diploid cells. "Human embryo" includes a zygote but does not include a
20human organism at or beyond the stage of development at which the major body
21structures are present.
SB404,6,2322
(b) "In vitro human embryo" means a human embryo, whether cryopreserved
23or not, living outside of a woman's body.
SB404,7,3
1(c) "Nontherapeutic human embryo research" means research involving an in
2vitro human embryo that is not intended to help protect or preserve the life or protect,
3preserve, or promote the health of the in vitro human embryo.
SB404,7,64
(d) "Research" means a systematic investigation, including research
5development, testing, and evaluation, designed to develop or contribute to
6generalizable knowledge.
SB404,7,8
7(3) Whoever intentionally causes the death of an in vitro human embryo is
8guilty of a Class E felony.
SB404,7,11
9(4) Whoever, with the knowledge that any person will intentionally cause the
10death of the in vitro human embryo, transfers an in vitro human embryo to any
11person is guilty of a Class E felony.
SB404,7,14
12(5) Whoever intentionally subjects an in vitro human embryo to a substantial
13risk of injury or death for the purpose of nontherapeutic human embryo research is
14guilty of a Class E felony.
SB404,7,18
15(6) Whoever, with the knowledge that the in vitro human embryo will
16intentionally be subjected to a substantial risk of injury or death for the purpose of
17nontherapeutic human embryo research, transfers an in vitro human embryo to
18another person is guilty of a Class E felony.
SB404,7,22
19(7) Whoever creates an in vitro human embryo outside of a woman's body,
20including through the removal of one or more cells from an existing in vitro human
21embryo, for the purpose of undertaking nontherapeutic human embryo research is
22guilty of a Class E felony.
SB404,8,2
23(8) Whoever uses, transfers, or acquires any living cell or tissue that the actor
24knows was obtained through conduct that is described under sub. (3), (5), or (7) is
25guilty of a Class E felony. This subsection does not apply to a person who transfers
1or acquires an in vitro human embryo for the purpose of having the embryo
2implanted in a woman's uterus.
SB404,8,3
3(9) Subsections (3) to (8) do not apply to any of the following:
SB404,8,64
(a) Cryopreserving an in vitro human embryo if the actor uses all available
5means to protect and preserve the life and protect, preserve, and promote the health
6of the embryo.
SB404,8,107
(b) Thawing an in vitro human embryo if the thawing is done for the purpose
8of facilitating the implantation of the embryo in a woman's uterus consistent with
9the criteria listed in par. (c) and if the actor uses all available means to protect and
10preserve the life and protect, preserve, and promote the health of the embryo.
SB404,8,1411
(c) Implanting or attempting to implant an in vitro human embryo in a woman's
12uterus if the embryo was created by fertilization, if the implantation or attempted
13implantation is done for the purpose of human reproduction, and if the woman
14intends to carry any resultant pregnancy to term.
SB404,8,1815
(d) The transfer or acquisition of an in vitro human embryo if the actor intends
16that the embryo be cryopreserved consistent with the criteria listed in par. (a),
17thawed consistent with the criteria listed in par. (b), or implanted in a woman's
18uterus consistent with the criteria listed in par. (c).
SB404,8,1919
(e) The donor of any gamete from which an in vitro human embryo is derived.
SB404,8,21
20(10) Whoever purchases or sells an in vitro human embryo is guilty of a Class
21E felony.
SB404,8,2423
(1)
Study of adoption of embryos and regulation of assisted reproductive
24services clinics.
SB404,8,2525
(a) In this subsection:
SB404,9,1
11. "Clinic" means a clinic that provides assisted reproductive services.
SB404,9,3
22. "In vitro human embryo" has the meaning given in section 940.17 (2) (b) of
3the statutes.