SPONSOR: Rep. Shupe & Sen. Buckson Reps. Collins, Yearick; Sens. Hocker, Lawson, Richardson HOUSE OF REPRESENTATIVES 153rd GENERAL ASSEMBLY HOUSE BILL NO. 46 AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO PARENTAL CONSENT FOR MINORS SEEKING AN ABORTION.
SPONSOR: Rep. Shupe & Sen. Buckson Reps. Collins, Yearick; Sens. Hocker, Lawson, Richardson
SPONSOR: Rep. Shupe & Sen. Buckson
Reps. Collins, Yearick; Sens. Hocker, Lawson, Richardson
SPONSOR:
Rep. Shupe & Sen. Buckson
Reps. Collins, Yearick; Sens. Hocker, Lawson, Richardson
HOUSE OF REPRESENTATIVES
153rd GENERAL ASSEMBLY
HOUSE BILL NO. 46
AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO PARENTAL CONSENT FOR MINORS SEEKING AN ABORTION.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE: Section 1. Amend Chapter 17, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows: 1782. Definitions For purposes of this subchapter, the following definitions will apply. (1) Abortion means the use of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant, with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus. (2) Coercion means restraining or dominating the choice of a minor female by force, threat of force, or deprivation of food and shelter. (3) Emancipated minor means any minor female who is or has been married or has, by court order or otherwise, been freed from the care, custody and control of her parents or any other legal guardian. (4) Licensed mental health professional means a person licensed under the Division of Professional Regulation of the State as a: (a) Psychiatrist; (b) Psychologist; or (c) Licensed professional counselor of mental health. (5) Medical emergency means that condition which, on the basis of the physician or other medically authorized persons good faith clinical judgment, so complicates the medical condition of the pregnant minor as to necessitate the immediate abortion of her pregnancy to avert her death or for which delay will create serious risk of substantial and irreversible impairment of a major bodily function. (6) Minor means a female person under the age of 16. (7) Neglect means the minor has been subjected to neglect or the failure of the parents or guardians to provide proper care, support, or supervision, making parental consent inappropriate or harmful. (8) Abuse means the minor has experienced physical, emotional, or sexual abuse by a parent, guardian, or other family member, creating a situation where obtaining parental consent would put the minor at risk of further harm. 1783. Notice Consent Required No physician or other medically authorized person shall perform an abortion upon an unemancipated minor until complying with the following notification provisions for obtaining written parental consent : (1) No physician or other medically authorized person shall perform an abortion upon an unemancipated minor unless the physician, medically authorized person, or an agent of the physician or of the medically authorized person has given at least 24 hours actual notice to received written consent from one or both parents (either custodial or noncustodial), a grandparent, a licensed mental health professional (who shall not be an employee or under contract to an abortion provider except employees or contractors of an acute care hospital) or to the legal guardian of the pregnant minor of the intention to perform the abortion . This consent must be obtained at least 24 hours before the abortion is performed. , or unless the physician, medically authorized person, or an agent of the physician or of the medically authorized person has received a written statement or oral communication from another physician or medically authorized person, hereinafter called the referring physician or medically authorized person, certifying that the referring physician or medically authorized person has given such notice. If the person contacted pursuant to this subsection is not the parent or guardian, the person so contacted must explain to the minor the options available to her include adoption, abortion and full-term pregnancy, and must agree that it is in the best interest of the minor that a waiver of the parental notice requirement be granted. Any licensed mental health professional so contacted shall certify that the professional has performed an assessment of the specific factors and circumstances of the minor subject to the evaluation including but not limited to the age and family circumstances of the minor and the long-term and short-term consequences to the minor of termination or continuation of the pregnancy. a. No physician or other abortion provider shall charge a referral fee to a person authorized under this section to receive notice give consent ; nor shall a person authorized under this section to receive notice give consent charge a referral fee to a physician or other abortion provider. b. Nothing in this section shall affect the obligations of a person pursuant to other provisions of this Code to report instances of child abuse to the appropriate government agencies. (2) The consent form shall include the following information: a. The name of the minor; b. The name and signature of the consenting parent or guardian; c. The name and signature of the attending physician; d. A statement indicating that the parent or guardian understands the nature of the procedure and consents voluntarily. (3) In cases where obtaining parental consent is not possible or is deemed inappropriate due to relevant proof of abuse or neglect, a minor may petition the Family Court (Court) of any county of this State for a waiver of the notice consent requirement of this section pursuant to the procedures of 1784 of this title. A physician who has received a copy of a court order granting a waiver application under 1784 of this title shall not, at any time, give notice of the minors abortion to any person without the minors written permission . 1784. Application for waiver of parental notice consent requirement; grounds; timeliness of decision; notice of decision; appeals; costs. (a) The Court shall consider waiving the notice consent requirement of 1783 of this title upon the proper application of a minor. The application shall be in writing, signed by the minor, and verified by her oath or affirmation before a person authorized to perform notarial acts. It shall designate: (1) The minors name and residence address; (2) A mailing address where the Courts order may be sent and a telephone number where messages for the minor may be left; (3) That the minor is pregnant; (4) That the minor desires to obtain an abortion; (5) Each person for whom the notice consent requirement is sought to be waived; and (6) The particular facts and circumstances which indicate that the minor is mature and well-informed enough to make the abortion decision on her own and/or that it is in the best interest of the minor that notification consent pursuant to 1783 of this title be waived. (b) The Court shall bypass the consent requirement of consent requirement of 1783 of this title if it finds, by clear and convincing evidence, that: (1) The minor is mature and well-informed enough to make the abortion decision independently; or (2) Obtaining parental consent is not in the best interest of the minor, such as in cases of abuse, neglect, or coercion. (b) (c) The Court, by a judge, shall grant the written application for a waiver if the facts recited in the application establish that the minor is mature and well-informed enough to make the abortion decision on her own or that it is in the best interest of the minor that notification consent pursuant to 1783 of this title be waived. The Court shall presume that married parents not separated and grandparents are complete confidants, such that, on application to waive the notice requirement as to either, grounds to waive the notice requirement as to one parent or grandparent shall constitute grounds to waive the notice requirement as to the spouse thereof. (c) (d) If the Court fails to rule within 5 calendar days of the time of the filing of the written application, the application shall be deemed granted; in which case, on the sixth day, the Court shall issue an order stating that the application is deemed granted. (d) (e) The Court shall mail 3 copies of any order to the mailing address identified in the application on the day the order issues, shall attempt to notify the minor by telephone on the day the order issues, and if so requested, shall make copies of the order available at Court chambers for the minor. (e) (f) An expedited appeal to the Supreme Court shall be available to any minor whose petition is denied by a judge of the Family Court. Notice of intent to appeal shall be given within 2 days of the receipt of actual notice of the denial of the petition. The Supreme Court shall advise the minor that she has a right to court-appointed counsel and shall provide her with such counsel upon request, at no cost to the minor. The Supreme Court shall expedite proceedings to the extent necessary and appropriate under the circumstances. The Supreme Court shall notify the minor of its decision consistent with subsection (d) of this section. (f) (g) No court shall assess any fee or cost upon a minor for any proceeding under this section. (g) (h) Each Court shall provide by rule for the confidentiality of proceedings under this subchapter, but shall continue to initiate investigations into any allegations of past abuse where otherwise appropriate, without disclosing that an application under this subchapter was the source of the information prompting the investigation. Section 2. Effective Date. This Act shall take effect 30 days after its enactment into law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 17, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
1782. Definitions
For purposes of this subchapter, the following definitions will apply.
(1) Abortion means the use of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant, with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
(2) Coercion means restraining or dominating the choice of a minor female by force, threat of force, or deprivation of food and shelter.
(3) Emancipated minor means any minor female who is or has been married or has, by court order or otherwise, been freed from the care, custody and control of her parents or any other legal guardian.
(4) Licensed mental health professional means a person licensed under the Division of Professional Regulation of the State as a:
(a) Psychiatrist;
(b) Psychologist; or
(c) Licensed professional counselor of mental health.
(5) Medical emergency means that condition which, on the basis of the physician or other medically authorized persons good faith clinical judgment, so complicates the medical condition of the pregnant minor as to necessitate the immediate abortion of her pregnancy to avert her death or for which delay will create serious risk of substantial and irreversible impairment of a major bodily function.
(6) Minor means a female person under the age of 16.
(7) Neglect means the minor has been subjected to neglect or the failure of the parents or guardians to provide proper care, support, or supervision, making parental consent inappropriate or harmful.
(8) Abuse means the minor has experienced physical, emotional, or sexual abuse by a parent, guardian, or other family member, creating a situation where obtaining parental consent would put the minor at risk of further harm.
1783. Notice Consent Required
No physician or other medically authorized person shall perform an abortion upon an unemancipated minor until complying with the following notification provisions for obtaining written parental consent :
(1) No physician or other medically authorized person shall perform an abortion upon an unemancipated minor unless the physician, medically authorized person, or an agent of the physician or of the medically authorized person has given at least 24 hours actual notice to received written consent from one or both parents (either custodial or noncustodial), a grandparent, a licensed mental health professional (who shall not be an employee or under contract to an abortion provider except employees or contractors of an acute care hospital) or to the legal guardian of the pregnant minor of the intention to perform the abortion . This consent must be obtained at least 24 hours before the abortion is performed. , or unless the physician, medically authorized person, or an agent of the physician or of the medically authorized person has received a written statement or oral communication from another physician or medically authorized person, hereinafter called the referring physician or medically authorized person, certifying that the referring physician or medically authorized person has given such notice. If the person contacted pursuant to this subsection is not the parent or guardian, the person so contacted must explain to the minor the options available to her include adoption, abortion and full-term pregnancy, and must agree that it is in the best interest of the minor that a waiver of the parental notice requirement be granted. Any licensed mental health professional so contacted shall certify that the professional has performed an assessment of the specific factors and circumstances of the minor subject to the evaluation including but not limited to the age and family circumstances of the minor and the long-term and short-term consequences to the minor of termination or continuation of the pregnancy.
a. No physician or other abortion provider shall charge a referral fee to a person authorized under this section to receive notice give consent ; nor shall a person authorized under this section to receive notice give consent charge a referral fee to a physician or other abortion provider.
b. Nothing in this section shall affect the obligations of a person pursuant to other provisions of this Code to report instances of child abuse to the appropriate government agencies.
(2) The consent form shall include the following information:
a. The name of the minor;
b. The name and signature of the consenting parent or guardian;
c. The name and signature of the attending physician;
d. A statement indicating that the parent or guardian understands the nature of the procedure and consents voluntarily.
(3) In cases where obtaining parental consent is not possible or is deemed inappropriate due to relevant proof of abuse or neglect, a minor may petition the Family Court (Court) of any county of this State for a waiver of the notice consent requirement of this section pursuant to the procedures of 1784 of this title. A physician who has received a copy of a court order granting a waiver application under 1784 of this title shall not, at any time, give notice of the minors abortion to any person without the minors written permission .
1784. Application for waiver of parental notice consent requirement; grounds; timeliness of decision; notice of decision; appeals; costs.
(a) The Court shall consider waiving the notice consent requirement of 1783 of this title upon the proper application of a minor. The application shall be in writing, signed by the minor, and verified by her oath or affirmation before a person authorized to perform notarial acts. It shall designate:
(1) The minors name and residence address;
(2) A mailing address where the Courts order may be sent and a telephone number where messages for the minor may be left;
(3) That the minor is pregnant;
(4) That the minor desires to obtain an abortion;
(5) Each person for whom the notice consent requirement is sought to be waived; and
(6) The particular facts and circumstances which indicate that the minor is mature and well-informed enough to make the abortion decision on her own and/or that it is in the best interest of the minor that notification consent pursuant to 1783 of this title be waived.
(b) The Court shall bypass the consent requirement of consent requirement of 1783 of this title if it finds, by clear and convincing evidence, that:
(1) The minor is mature and well-informed enough to make the abortion decision independently; or
(2) Obtaining parental consent is not in the best interest of the minor, such as in cases of abuse, neglect, or coercion.
(b) (c) The Court, by a judge, shall grant the written application for a waiver if the facts recited in the application establish that the minor is mature and well-informed enough to make the abortion decision on her own or that it is in the best interest of the minor that notification consent pursuant to 1783 of this title be waived. The Court shall presume that married parents not separated and grandparents are complete confidants, such that, on application to waive the notice requirement as to either, grounds to waive the notice requirement as to one parent or grandparent shall constitute grounds to waive the notice requirement as to the spouse thereof.
(c) (d) If the Court fails to rule within 5 calendar days of the time of the filing of the written application, the application shall be deemed granted; in which case, on the sixth day, the Court shall issue an order stating that the application is deemed granted.
(d) (e) The Court shall mail 3 copies of any order to the mailing address identified in the application on the day the order issues, shall attempt to notify the minor by telephone on the day the order issues, and if so requested, shall make copies of the order available at Court chambers for the minor.
(e) (f) An expedited appeal to the Supreme Court shall be available to any minor whose petition is denied by a judge of the Family Court. Notice of intent to appeal shall be given within 2 days of the receipt of actual notice of the denial of the petition. The Supreme Court shall advise the minor that she has a right to court-appointed counsel and shall provide her with such counsel upon request, at no cost to the minor. The Supreme Court shall expedite proceedings to the extent necessary and appropriate under the circumstances. The Supreme Court shall notify the minor of its decision consistent with subsection (d) of this section.
(f) (g) No court shall assess any fee or cost upon a minor for any proceeding under this section.
(g) (h) Each Court shall provide by rule for the confidentiality of proceedings under this subchapter, but shall continue to initiate investigations into any allegations of past abuse where otherwise appropriate, without disclosing that an application under this subchapter was the source of the information prompting the investigation.
Section 2. Effective Date. This Act shall take effect 30 days after its enactment into law.
SYNOPSIS This Act requires minors under the age of 16 obtain parental consent before undergoing an abortion, except in cases of medical emergency or if the Family Court adjudicates that the minor is mature and well-informed enough to make the decision independently, or obtaining parental consent is not in the best interest of the minor, such as in cases of abuse, neglect, or coercion.
SYNOPSIS
This Act requires minors under the age of 16 obtain parental consent before undergoing an abortion, except in cases of medical emergency or if the Family Court adjudicates that the minor is mature and well-informed enough to make the decision independently, or obtaining parental consent is not in the best interest of the minor, such as in cases of abuse, neglect, or coercion.