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 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.

Types of surrogacy available in Delaware

Can a parentage order be obtained for the following?

Gestational surrogacy

YES

Altruistic surrogacy

YES

Traditional surrogacy

YES, Although traditional surrogacy is not prohibited in Delaware, most Delaware attorneys advise against it due to the increased legal risks involved with the Termination of Parental Rights (TPR) and adoption process. Because traditional surrogacy involves the use of the surrogate’s own genetic material (i.e. her egg), she is not a surrogate under Delaware law and would be regarded and presumed as the legal parent upon the child’s birth (along with her spouse and any other genetic intended parent).

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 1 or Parent 2.

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, 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

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

Bases For Personal Jurisdiction

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.

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?

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.

Bases of Venue

What are the bases of venue?

There are three (3) counties in the State of Delaware: New Castle, Kent & Sussex. Venue for a proceeding to adjudicate parentage in the Family Court of the State of Delaware is based on any of the following: the County where the resulting child is to be born (or is otherwise found/residing); the county where the Intended Parent(s) live (resides or is found if the child does not reside in Delaware); or the county where the Gestational Carrier lives (resides or is found if the child does not reside in Delaware).

Do rulings vary by venue?

Can you file a motion to waive venue?

POSSIBLY

International Issues

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.

Residency Requirements

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

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?

YES

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

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

MAYBE

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

Assisted with 2023 Updates

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 August 2023