Synopsis
This Act adopts the 2017 updates to the Uniform Parentage Act ("Uniform Act") authored by the Uniform Law Commission. Delaware 's current law related to parentage is based on the Uniform Law Commission's 2000 version of the Uniform Parentage Act. The Uniform Law Commission’s website states that it “provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” The 2017 updates to the Uniform Act have been adopted by 11 states and is pending before the Pennsylvania state legislature. 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.