Yes. Surrogacy is legal in Delaware; the laws of surrogacy in Delaware are regulated by the “Gestational Carrier Agreement Act” of 2013, which details how the Delaware surrogacy process must proceed. These laws also specify the requirements that prospective surrogates and intended parents must meet and how surrogacy contracts must be drafted and finalized.
Traditional surrogacy laws are not recognized in the Delaware “Gestational Carrier Agreement Act” of 2013, yet it does not expressly prohibit traditional surrogacy. The Delaware surrogacy legislation only recognizes gestational surrogacy.
Most surrogacy professionals in Delaware will not complete traditional surrogacy due to the increased legal and emotional risks associated with this type of surrogacy.
Yes. Surrogacy laws in Delaware confirm a surrogate’s right to receive compensation and the legal enforceability of these surrogacy contracts. In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
Delaware surrogacy laws set out specific requirements for all gestational surrogacy contracts created in this state.
By law, surrogates in Delaware must:
Intended parents must:
Both parties must be represented by independent surrogacy attorneys and the signing of the contract must be witnessed by two people who are not parties to the agreement. Once the contract has been finalized and signed by both parties, the medical process of surrogacy can begin.
Pre-birth parentage orders are permitted to all intended parents regardless of marital status, sexual orientation, or genetic relationship to the child. These pre-birth orders confirm the legal parental rights of the intended parents upon the birth of the child.
Below is a list of some of the most frequently asked questions about surrogacy in Delaware.
Surrogacy contracts are enforceable for intended parents and surrogates as long as the contract meets all legal requirements.
No. All surrogacy laws in Delaware that apply to domestic intended parents also apply to international intended parents. It is important, however, that intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Adoptions after birth are usually not needed in Delaware because intended parents are typically able to obtain pre-birth orders.
The exception to this would be if intended parents from Delaware cannot obtain a pre-birth order in the state in which their surrogate delivers. In this case, intended parents may need to complete an adoption in that state or when they return to Delaware to protect their parental rights.
Yes. Delaware does allow second-parent adoptions; however, adoption is usually not needed because intended parents are usually able to obtain pre-birth orders. This legal process is usually taken if intended parents complete a surrogacy in another state and return to Delaware to take advantage of second-parent adoption laws.
Stepparent adoptions are available to married couples.
Intended parents who complete a surrogacy in Delaware are usually able to obtain a pre-birth order regardless of whether they used a donor egg, sperm, or embryo. Delaware laws state that a donor is not a parent of a child conceived by means of assisted reproduction.
No. There are no additional laws impacting same-sex parents in this state.
Deborah E. Spivack
Wilmington, DE
www.familybuildinglaw.net
(888) 899-6212
Suzanne I. Seubert, P.A.
Wilmington, DE
siseubertlaw.com
(302) 661-0400
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