The Seaford City Council is set to vote on an ordinance to establish a process for the disposition of fetal remains from pregnant women seeking an abortion within the City of Seaford.
As proposed the ordinance would allow a woman seeking an abortion in the city limits of Seaford to determine the disposition of the fetal remains. The woman would be able choose cremation or interment, including the final location of any such remains. The woman may also waive their rights under the ordinance and allow the abortion facility to determine whether the disposition of fetal remains, including the final location of any such remains.
“It’s a very tough and difficult topic, but there was an opportunity to follow what other states are doing around our country to offer a dignified way to handle those remains”, said Seaford Mayor David Genshaw. I think this is a good ordinance but this ultimately will be the council’s vote which will happen at our next council meeting on the second Tuesday in October (11/12/21).
Genshaw urged residents that have questions about the ordinance to reach out and talk to their council members. This will be coming up at the next city council meeting added Genshaw.
The ordinance can be found below.
CHAPTER 8 – MORALS AND CONDUCT
ARTICLE 9 – ORDINANCE RELATIVE TO ABORTION
[Amended on –/–/2021 by Ordinance #2021-]
§ 8.9.1 Purpose of Ordinance.
It is the purpose of the City of Seaford to establish a process for the disposition of fetal
remains from pregnant women seeking abortion within the City of Seaford. Pursuant to
this Ordinance, a pregnant woman has certain rights regarding the disposition of fetal
remains for an abortion performed in Seaford.
Pregnant women seeking abortion in the City limits of Seaford may either exercise their
rights under this Ordinance and determine whether disposition of fetal remains following
an abortion is made by cremation or interment (including the final location of any such
remains), or waive their rights under this Ordinance and allow the performing abortion
facility to determine whether disposition of fetal remains following an abortion is made by
cremation or internment (including the final location of any such remains).
It is the Intent of the City of Seaford to create a mechanism for abortions occurring within
the City of Seaford to protect the rights of its citizens and all those engaged in abortion
related activities, while providing a mechanism for the dignified disposal of any such fetal
remains following an abortion in Seaford.
§ 8.9.2 Definitions.
A. “Abortion” means the use of any instrument, medicine, drug, or any other similar
device or substance used with intent to terminate the pregnancy of a woman known to
be pregnant, with intent 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.
B. “Abortion Facility” means any of the following in which abortions are induced or
1. “Ambulatory Surgical Treatment Center”, which means any institution, place or
building devoted primarily to the maintenance and operation of a facility for the
performance of surgical procedures or any facility in which a medical or surgical
procedure is utilized to terminate a pregnancy.
2. “Another Facility”, which means any institution, place, or building providing health
care services required to be licensed under the laws of the State of Delaware, in
which abortion is legally provided.
C. “Cremation” means the heating process by which a human body or body parts are
reduced to bone fragments through combustion and evaporation or other similar
D. “Crematory” means the building, or any portion of a building or similar facility utilized
to house one (1) or more cremation chambers which is used for the reduction of body
parts or bodies of deceased persons to cremated remains and the holding facility.
“Crematory” includes “Crematorium” or other similar phrases used to describe any
such building or facility.
E. “Fetal Remains” means an aborted fetus, fetal tissue or any other similar remains that
results from an abortion of an Unborn Child.
F. “Funeral Establishment” means any business, regardless of the corporate form or lack
thereof of any such business, engaged in arranging, directing or supervising funerals,
for profit or other benefit, involved in: the preparing of dead human bodies for burial,
the disposition of dead human bodies, the provision or maintenance of place for the
preparation for disposition, or for the care or disposition of human bodies.
G. “Gestational Age” or “Gestation” means the age of an unborn child as calculated from
the first day of the last menstrual period of a pregnant woman.
H. “Interment” means the burial or entombment of fetal remains.
I. “Medical Emergency” means a condition that, in the physician’s good faith medical
judgment, based upon the facts known to the physician at the time, so complicates the
woman’s pregnancy as to necessitate the immediate performance or inducement of
an abortion in order to prevent the death of the pregnant woman or to avoid a serious
risk of the substantial and irreversible impairment of a major bodily function of the
pregnant woman that delay in the performance or inducement of the abortion would
J. “Pregnant” means the human female reproductive condition, of having a living Unborn
Child within her body throughout the entire embryonic and fetal stages of the unborn
child from fertilization to full Gestation and childbirth.
K. “Serious Risk of the Substantial and Irreversible Impairment of a Major Bodily
Function” means any medically diagnosed condition that so complicates the
pregnancy of the woman as to directly or indirectly cause the substantial and
irreversible impairment of a major bodily function. Such conditions include
preeclampsia, inevitable abortion, and premature rupture of the membranes and,
depending upon the circumstances, may also include, but are not limited to, diabetes
and multiple sclerosis, but does not include any condition relating to the woman’s
L. “Unborn Child” means an individual living member of the species, homo sapiens,
throughout the entire embryonic and fetal stages of the unborn child from fertilization
to Full gestation and childbirth.
M. “Viable” and “Viability” mean that stage of fetal development when the unborn child is
capable of sustained survival outside of the womb, with or without medical assistance.
§ 8.9.3 Cremation or Interment Required for all Abortions.
Final disposition of Fetal Remains from a surgical Abortion at an Abortion Facility must be
by either: (i) Cremation or (ii) Interment. Cremation must occur in a licensed Crematory
§ 8.9.4 Rights of a Pregnant Woman Pursuing Abortion.
A pregnant woman who has a surgical Abortion in Seaford has the right to determine the
following regarding the Fetal Remains: (i) whether the final disposition of the remains is by
Cremation or Interment, and (ii) the location for the final disposition of the remains.
A pregnant woman who has a surgical Abortion must be provided with a notification form
described in Section 8.9.11(A) herein by an Abortion Facility performing an Abortion.
§ 8.9.5 Procedure for Pregnant Woman Exercising Rights.
If a pregnant woman desires to exercise her rights under Section 8.9.4 herein, the woman
must make the determination in writing using a disposition form as described in Section
8.9.11(C) herein. Any such determination must clearly indicate the following: (i) whether
the final disposition will be by Cremation or Interment; and (ii) whether the final disposition
will be at a location other than the location provided by the Abortion Facility.
§ 8.9.6 Procedure for Pregnant Woman Declining to Exercise Rights.
If a pregnant woman does not desire to exercise her rights under Section 8.9.4 herein,
then the Abortion Facility shall determine whether final disposition of Fetal Remains is by
(i) Cremation or (ii) Interment, and the location of the Fetal Remains.
§ 8.9.7 Consent Required for Certain Class of Pregnant Women.
A pregnant woman who desires to exercise her rights under Section 8.9.4 herein and is (i)
under sixteen (16) years of age, and (ii) unmarried, and (iii) unemancipated, shall obtain
parental consent from one (1) of the pregnant woman’s parents, guardian, or custodian to
the final disposition determination she makes pursuant to this Ordinance. This consent
must be made in writing using the form prescribed by Section 8.9.11(B) herein. Such
consent is not required for a pregnant woman exercising her rights under Section 4 herein if
an order authorizing the minor to consent, or the Court to consent on behalf of the minor, to
the Abortion is issued by a Court of competent jurisdiction.
§ 8.9.8 Abortion of More Than One Unborn Child.
A pregnant woman carrying more than one (1) Unborn Child and who desires to exercise her
rights under Section 8.9.4 herein, shall complete one (1) disposition form under Section
8.9.11(C) for each Unborn Child that will be Aborted.
A pregnant woman who obtains parental consent pursuant to Section 8.9.7 herein shall use
one (1) consent form for each Unborn Child that will be Aborted.
A disposition form under Section 8.9.11(C) that covers more than one (1) Unborn Child that
will be Aborted is invalid.
§ 8.9.9 Requirements of Abortion Facility.
An Abortion Facility shall:
A. Document in the pregnant woman’s medical records the final disposition
determination made, and if applicable, the consent made, pursuant to Section
B. Maintain evidentiary documentation demonstrating the date and method of the
disposition of Fetal Remains from surgical Abortions performed or induced in the
C. Have written policies and procedures regarding Cremation or Interment of Fetal
Remains from surgical Abortions performed or induced in the facility; and,
D. Develop and maintain a written list of locations at which the facility provides or
arranges for the final disposition of Fetal Remains from surgical Abortions.
An Abortion Facility shall not release Fetal Remains from a surgical Abortion, or arrange
for the Cremation of Internment of the Fetal Remains, until the facility obtains a final
disposition determination made, and if applicable, the consent made, pursuant to
Section 7 herein.
§ 8.9.10 Costs of Cremation or Interment.
If the disposition form as required by Section 8.9.11(C) herein identifies a location for
final disposition other than allocation provided by the Abortion Facility, then the
pregnant woman is responsible for the costs related to the final disposition of the Fetal
Remains at the chosen location.
If the location for final disposition is the location provided by the Abortion Facility, then
the Abortion Facility shall pay for and provide for the Cremation or Internment of the
Fetal Remains from a surgical Abortion performed at that facility.
§ 8.9.11 Forms
Each Abortion Facility in Seaford shall promulgate rules as necessary to effectuate the
purposes of this Ordinance, including rules that prescribe the following:
A. A notification form informing pregnant women who seek surgical abortions of the
following: (a) the right to determine final disposition of Fetal Remains under Section
8.9.4 of this Ordinance, and (b) the available options for locations and methods for the
disposition of Fetal Remains.
B. The consent forms for purposes of Section 8.9.7 herein;
C. A disposition form that meets the following requirements:
1. Indicates whether the pregnant woman has indicated a preference as to the
method of disposition of the Fetal Remains and the preferred method selected;
2. Indicates whether the pregnant woman has indicated a preference as to the
location of disposition of the Fetal Remains; and,
3. Provides for the signature of the physician who is to perform or induce the Abortion;
4. Provides for a medical identification number for the pregnant woman but does not
provide for the pregnant woman’s printed name or signature.
If a Medical Emergency (as defined in Section 8.9.2 herein) prevents the pregnant woman
from completing the Form described in Section 8.9.11 (C) herein, procedures to complete
that form within a reasonable time after the Medical Emergency has ended.
§ 8.9.12 Rules Regarding Ambulatory Surgical Treatment Centers.
Regardless of the method selected for the disposition of remains by a pregnant woman,
Ambulatory Surgical Treatment Centers shall not provide beds or other accommodations
for the stay of a patient to exceed twelve (12) hours duration; provided, that the length of
stay may be extended for an additional twelve (12) hours in the event such stay is deemed
necessary by the attending physician, the facility medical director, or the anesthesiologist
for observation or recovery, but in no event shall the length of stay exceed twenty-four (24)
No patient for whom a medical or surgical procedure is utilized to terminate a pregnancy
shall stay at such a facility for a period exceeding twelve (12) hours duration, provided,
that the length of stay may be extended for an additional twelve (12) hours in the event
such stay is deemed necessary by the attending physician, the facility medical director, or
the anesthesiologist for observation in recovery, but in no event shall the length of stay
exceed twenty-four (24) hours.
§ 8.9.13 Liability.
Any person who disposes of Fetal Remains from a surgical Abortion is not liable for or
subject to damages in a civil action, prosecution in a criminal proceeding, or professional
disciplinary action related to the disposal of Fetal Remains, if that person does both of the
A. Complies in good faith with all aspects of this Ordinance; and,
B. Acts in furtherance of the final disposition of the Fetal Remains.
§ 8.9.14 Requirements for Operators of Crematories.
An operator of a Crematory facility shall not:
A. Cremate fetal remains without receiving a copy of a properly executed decision
regarding disposition form described in Section 8.9.11(C).
B. Dispose of Cremated Fetal Remains by a means other than one (1) of the following:
1. Placing the Cremated Fetal Remains in a grave, crypt or niche; or,
2. Scattering the Cremated Fetal Remains in a dignified manner, including in a
memorial garden, at sea, by air, or at a lawful scattering ground; or,
3. Releasing the Cremated Fetal Remains to the pregnant woman or a party
designated by the pregnant woman; or,
4. Any other lawful manner.
C. Arrange for the disposal of Cremated Fetal Remains by a means other than one
described in subsection (B) above.
D. Arrange for the transfer of the Cremated Fetal Remains for disposal by a means other
than the means described in subsection (B) above.
An operator of a Crematory facility is not required to secure a death certificate, burial
permit, transportation permit, or a cremation authorization form to Cremate Fetal
§ 8.9.15 Required Reporting of Abortion.
A. Each Abortion that occurs in Seaford shall be reported to The Office of Vital Statistics
within ten (10) days after the procedure by the person in charge of the institution in
which the Abortion was performed. If the Abortion was performed outside an
institution, the attending physician shall prepare and file the report. Each such report
shall indicate whether the Abortion involved a surgical procedure and, if so, which
method was employed, and shall indicate which method authorized by this Ordinance
was employed to dispose of the aborted Fetal Remains. If the Aborted Fetal Remains
were transferred to a third party for disposition, the report shall indicate the name and
address of the third party and the date of the transfer.
B. The individual undergoing Abortion shall not be identified by name on the report
required by Section 8.9.15(A) but shall be identified by her medical identification
number to provide retrieval of further information if necessary.
§ 8.9.16 Authorization for Final Disposition of Fetal Remains.
A. Prior to final disposition of Fetal Remains pursuant to this Ordinance, regardless of the
duration of pregnancy, the Funeral Establishment, the person in charge of the
institution, or other person assuming responsibility for final disposition of the Fetal
Remains, shall obtain from the mother authorization for final disposition.
B. When the demise of a fetus is the result of a surgical Abortion, a copy of the mother’s
authorization for disposition, specifying the means of the disposition, shall be
appended to the informed consent signed by the mother prior to the procedure.
C. After final disposition, the authorization shall be retained for a period of three (3) years
by the Funeral Establishment, the person in charge of the institution, or other person
making the final disposition.
§ 8.9.17 Severability.
If any provision of this Ordinance or its application to any person or circumstance is held
invalid, then the invalidity does not affect other provisions or applications of the Ordinance
that can be given effect without the invalid provision or application, and to that end, the
provisions of this Ordinance are severable.
§ 8.9.18 Effective Date.
For the purpose of promulgating rules, this Ordinance takes effect upon City Council
approval and an advertising period of thirty days, the public welfare requiring it, and applies
to actions occurring on or after that date.
§ 8.9.19 Violation of Ordinance – Penalties.
Violation of this Ordinance shall be enforced either by way of civil infraction or by way of
notice and order, with associated fines for such violation.
§ 8.9.20 Fetal Remains as Part of Criminal Investigation.
A. An Abortion Facility does not violate this Ordinance if upon the request of a law
enforcement officer made prior to final disposition of Fetal Remains, the Abortion
Facility retains the Fetal Remains and permits the law enforcement officer to collect a
portion or all of the Fetal Remains as evidence in a criminal investigation, as long as
the Abortion Facility subsequently makes final disposition of any remaining Fetal
Remains in accordance with this Ordinance.
B. An Abortion Facility that retains fetal remains pursuant to this Section 20:
1. Shall retain all of the Fetal Remains of the Unborn Child that may remain following
the collection of evidence by the law enforcement officer; and,
2. Except for those portions of the Fetal Remains collected as evidence by the law
enforcement officer, shall not dispose of any portion of the Fetal Remains of that
Unborn Child independently of other Fetal Remains of the same Unborn Child.
§ 8.9.21 through § 8.9.99 RESERVED