AN ACT TO AMEND TITLE 10, TITLE 13, AND TITLE 16 OF THE DELAWARE CODE RELATING TO THE UNIFORM PARENTAGE ACT.

This Act, through the adoption of the Uniform Act, does all of the following: (1) Removes gendered terms throughout this Act to ensure equal treatment of children born to same-sex couples. In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the U.S. Supreme Court held that laws barring marriage between two people of the same sex are unconstitutional. And, in Pavan v. Smith, 137 S. Ct. 2075, 2078-79 (2017), the U.S. Supreme Court held that a state may not deny married same-sex couples recognition on their children’s birth certificates that the state grants to married different-sex couples. After these decision, parentage laws that treat same-sex couples differently than different-sex couples may be unconstitutional. These changes are also consistent with Delaware’s efforts to write laws using gender silent language unless a solely masculine or feminine term is required to apply a law to 1 gender. See § 211(c) of Title 1 of the Delaware Code. Specifically, these changes include broadening the provisions of Delaware’s parentage law related to the presumption of parentage (Section 11 of this Act), acknowledgment of parentage (Sections 12 through 26 of this Act), genetic testing (Sections 41 through 52 of this Act), and assisted reproduction (Sections 82 through 89 of this Act) to make them gender neutral.

(2) Includes a provision for the establishment of a de facto parent as a legal parent of a child. A de facto parent is one who functions as a parent to the child but is unconnected through biology or marriage. This is not a change for Delaware, which has recognized de facto parents in Delaware’s definition of parent in Delaware’s parentage law since 2010. This Act moves the process for establishing de facto parentage to § 8-609 of Title 13 (Section 62 of this Act) to be part of the provisions related to adjudicating parentage, as establishing de facto parentage requires a judicial determination.

(3) Updates the assisted reproduction provisions of Delaware’s parentage law, including the parental status of a deceased individual addressing issues similar to those raised by Senate Substitute No. 1 for Senate Bill No. 119 (153rd General Assembly). Specifically, the Uniform Act would treat a deceased individual as a parent of a child conceived by assisted reproduction if the embryo is in utero not later than 36 months after the individual’s death or the child was born not later than 45 months after the individual’s death and if one of the following apply: a. The individual consented in a record to be a parent if assisted reproduction occurs after the individual’s death. b. The individual’s intent to be a parent after the individual’s death is established by clear-and-convincing evidence.

(4) Updates the surrogacy provisions of Delaware’s parentage law to reflect recent scientific, legal, and cultural developments in surrogacy practice (See Section 90 of this Act). Delaware’s parentage law currently includes a gestational carrier law and this Act continues that law and adds procedures related to a genetic carrier, which is an individual who is not an intended parent but becomes pregnant through assisted reproduction using the individual’s own gamete. Specifically, §§ 8-801 through 8-807 establish the rules that apply to both types of carrier agreements. Sections 8-808 through 8-813 includes the current rules that apply to gestational carrier agreements. Sections 8-814 through 8-821 adopts the Uniform Act’s rules that apply to genetic carrier agreements.

(5) Adopts requirements and procedures regarding access to non-identifying medical history and identifying information regarding gamete providers by children born through assisted reproduction and their parents. Based on data from 2015, the CDC reports that “approximately 1.6% of all infants born in the United States every year are conceived using ART.” Data suggests that this percentage continues to increase. Gaia Bernstein, Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogacy, 10 Ind. Health L. Rev. 291, 298 (2013) (noting that “from 2004 to 2008 the number of IVF cycles used for gestational surrogacy grew by 60%, the number of births by gestational surrogates grew by 53% and the number of babies born to gestational surrogates grew by 89%”). Accordingly, it is increasingly important for states to address these issues. The Uniform Act specifically does the following: a. Requires gamete banks and fertility clinics to collect and retain both identifying information and nonidentifying medical history about gamete donors. b. Requires gamete banks and fertility centers to provide non-identifying medical history to parents on request at any time and on request by the donor-conceived child who attains 18 years of age. c. With regard to identifying information, provides that a gamete bank or fertility center shall provide this information to the donor conceived child who attains 18 years of age on their request.

(6) Makes technical corrections that conform existing law to current standards of legislative drafting, consistent with the Uniform Act and the standards of the Delaware Legislative Drafting Manual.

(7) Consolidates or transfers existing provisions of Delaware’s Parentage Act to ensure logical organization of the law consistent with the Uniform Act, including the following: a. Definitions related to genetic testing, which are transferred from § 8-102 to § 8-501 (Section 41 of this Act). b. Provisions related to genetic testing, which are transferred to § 8-503(e) and (h) (Section 43 of this Act) from § 8-622 (Section 70 of this Act). c. Provisions related to the admissibility of results of genetic testing, which are transferred to § 8-606 (Section 59 of this Act) from § 8-621 (Section 69 of this Act). d. Provisions adjudicating parentage of a child with an alleged genetic parent, which are transferred to § 8-607 (Section 60 of this Act) from §§ 8-622, 8-623, 8-631, and 8-634 (regarding adjudicating parentage by default) (Sections 70, 71, 73, and 76 of this Act). e. Provisions adjudicating parentage of a child with a presumed parent, which are transferred to § 8-608 (Section 61 of this Act) from § 8-607 (Section 60 of this Act). f. Provisions adjudicating parentage of a child with an acknowledged parent, which are transferred to § 8-610 (Section 63 of this Act) from § 8-609 (Section 62 of this Act). g. Provisions adjudicating parentage of a child with an adjudicated parent, which are transferred to § 8-611 (Section 64 of this Act) from § 8-609 (Section 62 of this Act). h. Provisions adjudicating parentage of a child with an acknowledged parent, which are transferred to § 8-610 (Section 63 of this Act) from § 8-609 (Section 62 of this Act). i. Provisions related to issuing temporary orders, which are transferred to § 8-615 (Section 67 of this Act) from § 8-609 (Section 62 of this Act). j. Provisions related to combining proceedings, which are transferred to § 8-616 (Section 67 of this Act) from § 8-610 (Section 63 of this Act). k. Provisions related to proceedings before birth, which are transferred to § 8-617 (Section 67 of this Act) from § 8-611 (Section 64 of this Act). l. Provisions related to the child being a party and representated, which are transferred to § 8-618 (Section 67 of this Act) from § 8-612 (Section 65 of this Act). m. Provisions related to the court adjudicating parentage, which are transferred to § 8-619 (Section 67 of this Act) from § 8-632 (Section 74 of this Act). n. Provisions related to dismissal for want of prosecution, which are transferred to § 8-621 (Section 69 of this Act) from § 8-635 (Section 77 of this Act). o. Provisions related to orders adjudicating parentage, which are transferred to § 8-622 (Section 70 of this Act) from § 8-636 (Section 78 of this Act). p. Provisions related to the binding effect of a determination of parentage, which are transferred to § 8-623 (Section 71 of this Act) from § 8-637 (Section 79 of this Act). q. Miscellaneous provisions currently in subchapter IX which are transferred to subchapter X to allow for the inclusion of new provisions related to information about donors of gametes or embryos intended for use in assisted reproduction.

(8) In Sections 98 through 125 of this Act, makes changes to conform existing law to the changes made by the Uniform Act. The majority of these changes ensure consistent usage of terms and definitions used by the Uniform Act.