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STATE SURROGACY LAW:

Delaware Surrogacy Laws

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Overview

Surrogacy is regulated and protected in Delaware by the Gestational Carrier Agreement Act (2013). The Gestational Carrier Agreement outlines requirements for surrogacy arrangements to establish consistent standards and procedural safeguards for the protection of all parties to a gestational carrier agreement in this state and to confirm the legal status of children born as a result of these agreements.

Types of surrogacy available in Delaware

Can a parentage order be obtained for the following?

Because traditional surrogacy involves the use of the surrogate’s own genetic material, it should be regarded as an adoption process rather than surrogacy; in order to establish parentage, the non-genetic parent must complete a stepparent adoption. Although traditional surrogacy is not prohibited in Delaware, many attorneys and agencies advise against it due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

UNCERTAIN

Altruistic surrogacy

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

💚 – Both Intended Parent(s) can be named on the parentage order

💛 – Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father-Mother, Parent-Parent, or Mother or Father.

Rights of Egg or Sperm Donor(s)

According to Delaware Statute §8-702, donors of sperm or egg for assisted reproduction procedures have no parental rights over the donated gametes or a resulting child. 

Surrogacy Steps in Delaware

Surrogacy Process in Delaware

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Pre-birth order

Delaware allows pre-birth orders to be filed, but they are not required. Proceedings begin after first trimester.​

Delivery & Post-birth order

Under the Delaware Gestational Carrier Act, the pre-birth order is stayed until birth. Once the baby is born, the parentage order goes into effect and establishes the Intended Parent(s) as legal parent(s).

Birth Certificate Timeline

Birth certificate

5-10 days

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

As long as Delaware statutory requirements are met, Delaware recognizes and enforces gestational surrogacy contracts. However, it doesn’t address traditional surrogacy contracts. 

Independent Counsel

Independent counsel is required for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

Surrogates

  • Must be at least 21 years of age
  • Must have given birth to at least 1 child
  • Must have completed a medical evaluation
  • Must have completed a mental health evaluation
  • Must be represented by independent legal counsel regarding the terms of the gestational carrier agreement and been advised of the potential legal consequences of the gestational carrier arrangement which legal expense shall be paid for by the Intended Parent(s) if requested
  • Must have or obtain prior to the embryo transfer a health insurance policy that covers major medical treatments and hospitalization and the health insurance policy has a term that extends throughout the duration of the expected pregnancy and for 8 weeks after the birth of the child; provided, however, that the policy may be procured by the Intended Parent(s) on behalf of the gestational carrier pursuant to the gestational carrier agreement.

Intended Parent(s)

  • Must have completed a mental health evaluation; and
  • Must have independent legal representation regarding the terms of the gestational carrier agreement and have been advised of the potential legal consequences of the gestational carrier arrangement.

Agencies and fertility clinics may have additional requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys.

Birth Orders

Do courts issue pre-birth orders?

YES

Do courts issue post-birth orders?

YES

Are hearings required to obtain either pre- or post-birth orders?

YES

Delaware allows for pre-birth orders, but they cannot be enforced until after the child is born. Post-birth orders allow for the finalization of parental rights and the birth certificate.

Bases of Venue

What are the bases of venue?

County where the child is born; county where the Intended Parent(s) live; county where the Gestational Carrier lives; county where the embryo transfer takes place; county where the surrogacy agreement is executed.

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

NO

International Issues

International Intended Parent(s) may find doing surrogacy in Delaware a relatively easy process compared to some other states because of its straightforward and inclusive process. International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.  

Residency Requirements

Does the state impose residency requirements on either the surrogate or Intended Parent(s):

NO

As long as a nonresident meets the requirements for jurisdiction, there are no residency requirements.

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

UNCERTAIN

Can an international same-sex male couple obtain an initial birth certificate naming only the biological father?

YES

Can they obtain a subsequent birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Dana Reynolds
Law Offices of Dana L. Reynolds LLC
30 C Trolley Square
Wilmington, DE 19806
(302) 428-8900
reynolds@danareynoldslaw.com
www.danareynoldslaw.com

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2019

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