Surrogacy is regulated and protected in Delaware by the Gestational Carrier Agreement Act (2013) . The Gestational Carrier Agreement Act outlines the statutory requirements for gestational 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.
Can a parentage order be obtained for the following?
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.
Intended Parent(s) may be listed as Father, Mother, Parent 1 or Parent 2.
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.
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.
As long as Delaware statutory requirements are met, Delaware recognizes and enforces gestational surrogacy contracts. However, the Act expressly does not address traditional surrogacy contracts so parentage in traditional surrogacy arrangements are governed by existing statutory law relating to parental rights and must be resolved through the Termination of Parental Rights (TPR) and adoption process.
Independent counsel is required for all parties involved in a surrogacy agreement.
A Delaware Court will enforce a gestational carrier agreement and exercise personal jurisdiction over a nonresident intended parent or gestational carrier if, among other things, the nonresident meets one of the following requirements: Consents to the jurisdiction of Delaware; Resided in Delaware at the time of signing the gestational carrier agreement or consented to the embryo transfer; The nonresident gestational carrier had or is expected to have an embryo transfer performed in Delaware pursuant to the gestational carrier agreement; The nonresident intended parent(s) consented to the gestational carrier having an embryo transfer in Delaware pursuant to the gestational carrier agreement; The child was, or is expected to be born in Delaware as written in the gestational carrier agreement or; The child resides in Delaware.
Although bases for personal jurisdiction is not required by law for a surrogacy contract to be recognized by the court, it is strongly recommended that personal bases be established prior to entering a surrogacy agreement.
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.
Delaware allows for pre-birth orders that become effective upon the child’s birth and such orders are strongly recommended. If no pre-birth order is obtained, then post-birth parentage orders may be sought to address parental rights and correct birth certificates.
International Intended Parent(s) may find 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.
It is highly recommended that intended parents who are citizens or residents of a foreign country (or foreign state outside of Delaware) utilize only gestational carriers residing in the State of Delaware and planning to give birth in Delaware.
As long as a nonresident meets the requirements for jurisdiction, there are no residency requirements.
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.
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 August 2023