CHAPTER 148

FORMERLY

SENATE BILL NO. 33

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 57, TITLE 16, DELAWARE CODE, RELATING TO VOLUNTARY AND INVOLUNTARY STERILIZATION AND MAKING A SUPPLEMENTARY APPROPRIATION THEREFORE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 57, Title 16, Delaware Code, by striking said Chapter in its entirety and substituting in lieu thereof a new Chapter to read as follows:

"CHAPTER 57. VOLUNTARY AND INVOLUNTARY STERILIZATION

§5701. Sterilization Defined

(a) As used in this Chapter 'sterilization' means any surgical or medical procedure intended to render a person permanently unable to procreate.

(b) As used in this Chapter 'informed consent' means consent to be sterilized given by the person to be sterilized and given voluntarily and with an understanding of the nature and consequences of the procedure to be performed.

§5702. Scope of Chapter

(a) Nothing in this Chaptcr shall be construed to require compliance with the procedures herein, or prevent the medical treatment of any person by any physician duly licensed to practice medicine in this State, when such treatment may result in an inability to procreate as a secondary effect; provided that such treatment Is to remedy a substantial danger to life or health and under usual circumstances for elective surgery such secondary effect Is explained to the person and the person gives Informed consent thereto or that a bona fide emergency prevents such explanation and consent.

(b) Nothing in this Chapter shall be construed to prevent the sterilization by any licensed physician of any person eighteen (18) or more years of age who voluntarily, knowingly and personally requests such treatment and gives informed consent thereto.

(c) Nothing in this Chapter shall be construed to permit the involuntary sterilization of a person confined to any correctional institution on the basis of such confinement.

(d) All other sterilization shall be In accordance with this Chapter.

§5703. Informed Consent not Presumed

The following persons shall be presumed incapable of giving informed consent to sterilization: (I) A patient or resident of any institution for the mentally ill or retarded;

(2) A person known by the physician to be on convalescent leave or any other form of conditional discharge from any institution for the mentally W Of retarded;

(3) A person confined to any correctional institution; or

(4) A person on whose behalf sterilization is requested by another person Of agency.

§5704. Jurisdiction and Venue

Sterilization of any person presumed incapable of giving informed consent thereto may be performed only if the Court of Chancery In the county in which the person to be sterilized resides or in which the Institution in which he resides Is located:

(I) Issues a declaratory Judgment that the person has given informed consent; or (2) orders involuntary sterilization In compliance with this Chapter.

§5705. Filing Petitton

(a) A petition for a declaratory Judgement or for involuntary sterilization under this Chapter may be filed in the Court of Chancery by:

(1) the chief executive officer of the institution in which the person to be sterilized resides;

(2) the head of the agency responsible for such person if he is not a resident of an institution; or

(3) the parent or guardian of such person.

(4) Any agency which by virtue of the scope of its powers and Jurisdiction has an interest in the sterilization of the person.

(b) A form of preliminary order setting the matter down for hearing and providing for the giving of the required notice shall be filed with the petition.

§5706. Petition for Declaratory Judgement

(a) Any petition for a declaratory Judgement that the person to be sterilized has given informed consent shall be verified and shall:

(1) Identify the petitioner and his relationship to the person for whom sterilization is sought;

(2) Name as respondent the person for whom sterilization Is sought and set forth the respondent's age, sex, residence, marital status, mental condition and identify the respondent's parents, guardian, spouse, if any, and next of kin, if other than the petitioner;

(3) Identify the physician who will perform the sterilization and the hospital or clinic where such procedure will be performed;

(4) Identify the sterilization procedure to be performed;

(5) State whether, in the opinion of the petitioner, the person for whom sterilization has been sought has given informed consent to the sterilization procedure to be performed; and

(6) Pray for a declaratory judgement that the respondent has given Informed consent to sterilization.

(b) Any petition under this Section shall have annexed thereto a verified report of a psychiatrist or psychologist duly authorized to practice in the State of Delaware stating that he has examined the respondent and that the respondent is, In his opinion, capable of giving informed consent to the sterilization procedure to be performed.

§5707. Petition for Involuntary Sterilization

(a) Any petition for the sterilization of any person presumed incapable of informed consent shall be verified and shall:

(1) Identify the petitioner and his relationship to the person for whom sterilization is sought;

(2) Name as respondent the person for whom sterilization is sought and set forth the respondent's age, sex, residence, marital status, mental condition and identify the respondent's parents, guardian, spouse, if any, and next of kin, if other than the petitioner;

(3) Identify the physician who will perform the sterilization and the hospital or clinic where such procedure will be performed;

(4) Identify the sterilization procedure to be performed;

(5) State whether, in the opinion of the petitioner, the person for whom involuntary sterilization is sought is incapable of giving informed consent to the sterilization procedure to be performed; and

(6) Pray for an order authorizing the sterilization of the respondent.

(b) Any petition under this Section shall have annexed thereto the affidavit of a psychiatrist or psychologist duly licensed to practice In the State of Delaware, which affidavit shall sot forth:

(I) The date he last examined the respondent;

(2) Whether or not the respondent is permanently incapable, or is and will in the affiant's opinion remain Incapable for the foreseeable future, of giving Informed consent to the sterilization procedure to be performed; and

(3) Whether, in the opinion of the affiant, it would or would not be meaningless or detrimental to the health of the respondent to serve a copy of the petition and notice of the hearing personally upon the respondent.

(c) Any petition under this Section shall also have annexed thereto an affidavit or affidavits of the duly licensed physician or physicians, which affidavit or affidavits shall set forth:

(1) The date that he last examined the respondent;

(2) Whether or not the respondent. if not sterilized. Is likely to procreate a child;

(3) The sterilization procedure to be performed and, if other than the least drastic means of sterilization is to be performed, why such procedure is medically or hygienically indicated;

(4) Whether:

(i) the respondent. if not sterilized, is likely to procreate a child who would have any

probability of serious physical, mental or nervous disease or deficiency;

OD the respondent would be so Incapable of caring for a child that procreation would be inadvisable and likely to endanger the welfare of the child;

(ill) such incapability of caring for a child, if any, is either permanent or likely to persist into the foreseeable future and whether instruction or training Is likely to overcome such incapability;

(5) Whether, if the respondent is female. pregnancy would present a substantial danger to the life or health of the respondent;

(6) Whether, in the opinion of the affiant, the benefit to respondent from the sterilization procedure outweighs any known medical contraindications to the procedure to be performed; and

(7) Whether. in the opinion of the affiant, it would or would not be meaningless or detrimental to the health of the respondent to serve a copy of the petition and notice of the hearing personally upon such person.

§5708. Service of Petition and Notice

(a) Upon the filing of a petition for a declaratory judgement or for involuntary sterilization under this Chapter. service of the petition shall be made and notice shall be given as hereinafter provided.

(b) Service of the petition shall be made upon the person for whom sterilization is sought at least ten (10) days before the hearing date. Where the affidavits required by 55706(b) or §5707(b) and (c) recite that it would be meaningless or detrimental to the health of the respondent to serve the respondent personally. the required service shall be made upon the person in charge of the institution or home where the respondent resides. If the petitioner has the custody of the respondent and the affidavits required by §5706(b) or §5707(b) and (c) recite that service would be meaningless or detrimental, the required service shall be made on the spouse, parent or guardian. if any, or the next of kin of the respondent who are eighteen (18) years of age or older and who reside in the State of Delaware. As to persons so served, the notice by mall provided in subsection (c) hereof is not required.

(c) Notice to Others. Notice by registered or certified mail, return receipt
requested. of the time place and purpose of the hearing shall be given by or on behalf of the petitioner, to the spouse. parent or guardian, if any, and to the next of kin of the respondent who are eighteen (18) years of age or older. Notice need not be given to any person if he shall consent in writing to the granting of the prayer of the petition or shall waive such notice.

(d) Proof of Service and Notice. Proof of service and of notice shall be filed with the Register in Chancery prior to the hearing or shall be presented at the hearing

§5704 interim Actiontly Court

(b) On the motion of the respondent or on its own motion the court may order an independent examination by a duty licensed physician, psychiatrist or psychologist not employed by the agency responsible for the care of the respondent. The court may order that such examination be at State expense.

§5710. Procedural Rights of Person to be Sterilized

Any person for whom sterilization is sought shall have the following procedural rights:

(1) the right to counsel;

(2) the right of cross examination;

(3) the right to present his own evidence;

(4) the right to compel the attendance of witnesses: and

(5) all other rights of civil litigants in the Court of Chancery.

§5711. Hearing on Petition for Declaratory Judgement

(a) The hearing upon the petition for a declaratory judgement under this Chapter shall be by the Court.

(b) If the attorney for the respondent and the guardian ad Mem, If any, agree and the Court is satisfied that the report required by §5706(b) demonstrates clearly and convincingly that the respondent has given Informed consent to sterilization and there is no objection to the petition, the Court may grant it without requiring the petitioner to present other evidence.

(c) If there is objection to the petition, the Court will receive evidence at the hearing or, for good cause, adjourn the hearing to another date for the reception of evidence.

(d) The Court may issue a declaratory judgement after hearing if satisfied by clear and convincing evidence that the respondent has given informed consent to sterilization,

§5712. Hearing on Petition for Involuntary Sterilization

(a) The hearing upon the petition for involuntary sterilization under this Chapter shall be by the Court.

(b) The Court may order the involuntary sterilization of the respondent without requiring the petitioner to present other evidence, (1) if there is no objection to the petition: (2) if the attorney for the respondent, and the guardian ad !item. if any, agree and (3) if the Court is satisfied that the affidavits required by §5707(b) and (c) demonstrate clearly and convincingly that:

(I) The respondent is presently incapable of giving informed consent to sterilization; and

(2) The respondent is more likely than not to remain so incapable either permanently or for the foreseeable future and that all attempts to render the respondent capable of giving informed consent have been and are likely to remain ineffectual; and

(3) The benefit to respondent from the sterilization outweighs any known medical contraindications to the procedure to be performed; and

(4) If the respondent is not sterilized, the respondent is more likely than not to procreate and all less drastic medically advisable alternative means to prevent procreation are or have been ineffective; and

(5) (I) the respondent, if not sterilized, Is likely to procreate a child who would have a probability of serious physical, mental or nervous disease or deficiency: or (ii) the respondent would be so incapable of caring for a child that procreation would be inadvisable and likely to endanger the welfare of the child; or (iii) if the respondent is female, pregnancy would present a substantial danger to the life or health of the respondent; and

(6) The procedure to be performed is the least drastic medically or hygienically indicated means of sterilizing the respondent.

(c) If there is objection to the petition, the Court will receive evidence at the hearing or, for good cause, adjourn the hearing to another date for the reception of evidence.

(d) 'the Court may Issue an order authorizing the involuntary sterilization of respondent after hearing, if satisfied by clear and convincing evidence that the criteria set forth in subsection (b) hereof have been met.

§5713, Physician's Certification

(a) In all cases where the Court issues an order authorizing involuntary sterilization or a declaratory judgement that informed consent to sterilization has been given, the physician to perform the sterilization shall, prior to performing such procedure, certify that he was provided with a copy of the Court's order.

(b) The physician's certificate shall be filed with the Register in Chancery within ten (10) days of the performance of the sterilization procedure.

§5714. Records

A record shall be kept in every Institution having the custody of any person operated upon under this Chapter of such operation and of its effect upon the person operated upon and such records shall at all times be subject to inspection by the Department of Health and Social Services.

§5715. Limitation of Liability

(a) No physician who performs a sterilization in compliance with this Chapter shall be held liable for the respondent's loss of procreative power.

(b) No hospital or clinic wherein a sterilization in compliance with this Chapter is performed shall be held liable for respondent's loss of procreative power.

(e) No physician, psychiatrist or psychologist who provides a report required by this Chapter shall be held liable for respondent's loss of procreative power.

(d) Nothing contained in this Section shall be construed to excuse any physician, psychiatrist, psychologist, hospital or clinic from liability for malpractice.

§5716. Costs

(a) Any proceeding under this Chapter shall be exempt from making a deposit for costs with the Register in Chancery.

(b) The Court may order that the costs of any proceeding under this Chapter be paid for from resources available to the recipient of these proceedings. If such resources are not available, the Court may order that the costs of any proceceding under this Chapter be borne by the State.

(c) The Board or Commission having custody of any person operated upon under this Chapter shall pay out of its funds for the costs of the examination and the cost of performing the operation and hospital bins and transportation in connection therewith."

Approved July 12, 1985