A5441

An Act concerning certain surgical procedures and supplementing Title 26 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

“Person born with variations in their sex characteristics” means a person born with one or more physical traits, including genitals or gonads, or hormonal function or chromosomal patterns that vary from stereotypical notions regarding the development, appearance, or function of those sex characteristics including, but not limited to, variations of sex development resulting from androgen insensitivity syndrome or congenital adrenal hyperplasia.

“Prohibited surgical procedure” means clitoroplasty; clitoral reduction; clitoral recession, including corporal-sparing procedures; gonadectomy; any procedure that lengthens or reroutes the urethra from its native orifice; vaginoplasty; urogenital sinus mobilization; and vaginal exteriorization.

“Surgery required to address an immediate risk of physical harm” means: a surgery to remove tissue that poses a significantly heightened clinical risk of malignancy relative to that of the general population; a surgery to allow urine to exit the body, to treat urinary incontinence, or to make a minimally invasive adjustment to urinary function in order to decrease a risk of infection or renal complication in a patient whose current urinary function puts them at a demonstrated clinical risk of infection or renal complication; a surgery that is required to treat complications of a previous surgery and cannot be delayed without increasing physical health risks to the patient; or a surgery that is necessary to preserve life in the event of a medical emergency, except that psychological, psychosocial, or social factors shall not be the basis for determining whether the surgery is necessary to preserve an individual’s life. when the surgery is not at the behest of the individual.

2. a. A prohibited surgical procedure shall not be performed by a health care professional in a health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et al.) on a person born with variations in their physical sex characteristics, who is 12 years of age or under, unless the surgery is required to address an immediate risk of physical harm.

b. If a hospital allows a surgical procedure prohibited under subsection b. of this act to be performed by a health care professional in violation of the provisions of this act, the State Board of Medical Examiners shall invoke penalties or take administrative action against the health care professional. Any penalties imposed or administrative actions taken by the State Board of Medical Examiners pursuant to this subsection may be imposed in a summary proceeding.

3. a. A health care professional who performs a prohibited surgical procedure in violation of the provisions of section 2 of this act shall be liable to the person upon whom the prohibited surgical procedure was performed. Such a person may file an appropriate civil action against the health care professional in the Superior Court, and the court may order the health care professional to pay:

(1) actual, compensatory, and punitive damages, and other injunctive and equitable relief as the court determines to be appropriate;

(2) treble damages upon proof of willful, malicious, or reckless disregard of the law; and

(3) reasonable attorney's fees and other litigation costs reasonably incurred.

b. A civil action shall be filed under this section within 10 years of the date the prohibited surgical procedure was performed, except that, if the person filing the action is 12 years of age or under, the action shall not be commenced until the person reaches the age of 18.

4. This act shall take effect immediately.

STATEMENT

This bill prohibits a health care professional in a health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et al.) from performing certain prohibited surgical procedures on a person born with variations in their sex characteristics, who is 12 years of age orunder, unless the surgery is required to address an immediate risk of physical harm.. The surgical procedures prohibited under the bill include: clitoroplasty; clitoral reduction; clitoral recession, including corporal-sparing procedures; gonadectomy; any procedure that lengthens or reroutes the urethra from its native orifice; vaginoplasty; urogenital sinus mobilization; and vaginal exteriorization.

A person born with variations in their sex characteristics is defined in the bill as a person who born with one or more physical traits, including genitals or gonads, or hormonal function or chromosomal patterns that vary from stereotypical notions regarding the development, appearance, or function of those sex characteristics including, but not limited to, variations of sex development resulting from androgen insensitivity syndrome and congenital adrenal hyperplasia.

The bill further defines a “surgery required to address an immediate risk of physical harm” to means a surgery: to remove tissue that poses a heightened clinical risk of malignancy relative to that of the general population; to allow urine to exit the body, to treat urinary incontinence, or to make a minimally invasive adjustment to urinary function in order to decrease a risk of infection or renal complication in a patient whose current urinary function puts them at a demonstrated clinical risk of infection or renal complication; that is required to treat complications of a previous surgery and cannot be delayed without increasing physical health risks to the patient; or that is necessary to preserve life in the event of a medical emergency, except that psychological, psychosocial, or social factors shall not be the basis for determining whether the surgery is necessary to preserve an individual’s life.

The bill also stipulates that if a hospital allows a prohibited surgical procedure to be performed by a health care professional in violation of the bill’s provisions, the State Board of Medical Examiners is to invoke penalties or take administrative action against the health care professional. Any penalties imposed or administrative actions taken by the State Board may be imposed in a summary proceeding.

Under the bill’s provisions, a health care professional who performs a prohibited surgical procedure on a person born with variations in their sex characteristics 12 years of age or under, in violation of the provisions of the bill, will be civilly liable to that person. The person upon whom the surgery is performed may bring a civil action in the Superior Court. The court may then order: actual, compensatory, and punitive damages, and other injunctive and equitable relief as the court determines to be appropriate; treble damages upon proof of willful, malicious, or reckless disregard of the law; and reasonable attorney's fees and other litigation costs reasonably incurred.

A civil action brought under provisions of the bill is to be filed within 10 years of the date the surgical procedure was performed, except that, if a person 12 years of age or under files the action, the action may not commence until the person reaches the age of 18.