Delaware surrogacy laws are among the clearest cut in the United States, regulated by the “Gestational Carrier Agreement Act” of 2013, making it relatively easy to become a surrogate or a parent through surrogacy. 

Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Delaware, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.

Below is a list of some of the most frequently asked questions about surrogacy in Delaware.

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Is Gestational Surrogacy Legal in Delaware?

YesSurrogacy 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.

Is Traditional Surrogacy Legal in Delaware?

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.

Is Compensated Surrogacy Legal in Delaware?

YesSurrogacy 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:

  • Mock cycle compensation 
  • Embryo transfer compensation
  • Starting medication compensation
  • Monthly allowance for miscellaneous expenses
  • Monthly Housekeeping budget
  • Maternity clothing budget
  • Medical expenses
  • Travel to and from clinic/hospital
  • Lost wages if applicable
  • Child care if bed rest is required
  • Term life insurance
  • Medical insurance
  • Independent legal counsel
  • Psychological counseling
  • Other depending on agency

Creating a Delaware Surrogacy Contract

Delaware surrogacy laws set out specific requirements for all gestational surrogacy contracts created in this state. 

By law, surrogates in Delaware must:

  • Be at least 21 years old
  • Have previously given birth
  • Have completed a medical and mental health evaluation  

Intended parents must:

  • Have completed a mental health evaluation 
  • Have obtained legal representation and been advised of the potential legal consequences of their surrogacy contract

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.   

Determining Legal Parentage in Delaware

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.


Same-Sex Surrogacy in Delaware

Q: Is Same-Sex Surrogacy Legal in Delaware?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure. 

Q: Are There any Additional Laws Impacting Same-Sex Parenting in Delaware?
A: No. There are no additional laws impacting same-sex parents in this state.


Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Delaware?

A: Surrogacy contracts are enforceable for intended parents and surrogates as long as the contract meets all legal requirements. 

Q: Are there any particular laws for parents outside the United States Who Complete a Surrogacy in Delaware?

A: No. All surrogacy laws in Delaware that apply to domestic intended parents also apply to international intended parentsIt 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.

Q: When do Intended Parents Need to Complete an Adoption After Birth?

A: 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. 

Q: Does Delaware Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?

A: YesDelaware 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.  

Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm, or Embryo?

A: 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.”


Deborah E. Spivak
Wilmington, DE
(888) 899-6212

Suzanne I. Seubert, P.A.
Wilmington, DE
(302) 661-0400

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