Is Surrogacy Legal in Delaware?

Key Points:

• Surrogacy professionals can help you navigate surrogacy laws in Delaware.
• A surrogacy contract will need to be drafted before the medical stage of the process begins.
• Pre-birth orders are an important part of the surrogacy process and help intended parents establish parentage.

Out of the surrogacy laws in the United States, the surrogacy laws in Delaware are among the most clear and well-defined, which makes it a relatively easy and safe state in which to become a surrogate or a parent through surrogacy. To achieve this, you’ll need the guidance of an experienced surrogacy professional to help you successfully navigate the DE surrogacy laws relevant in your situation.

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The information below is meant to give you a general understanding of the rules and regulations of surrogacy in Delaware, but shouldn’t be used as proper legal advice.

These are a few of the most commonly asked questions about Delaware surrogacy laws:

“Is Surrogacy Legal in Delaware?”

Yes. Surrogacy is legal in Delaware, and a common way for families to grow. The laws of surrogacy in Delaware are regulated by the “Gestational Carrier Agreement Act” of 2013, which details how the DE 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?”

This is a legally gray area in the state of Delaware. The “Gestational Carrier Agreement Act” does not recognize traditional surrogacy laws in Delaware. The Delaware surrogacy legislation only recognizes gestational surrogacy laws in Delaware, although it technically does not expressly prohibit traditional surrogacy.

Either way, most surrogacy professionals will not complete a traditional surrogacy because of the legal and emotional risks that tend to accompany it.

“Is Compensated Surrogacy Legal in Delaware?”

Yes. Surrogacy laws in Delaware confirm a surrogate’s right to receive compensation and the legal enforceability of these surrogacy contracts. Surrogates are compensated for the medical risks they take on, missed wages at work, the time dedicated to the surrogacy process, surrogacy-related travel expenses and other pregnancy- or surrogacy-related costs.

“Is Same-Sex Surrogacy Legal in Delaware?”

Yes.  Delaware surrogacy laws protect same-sex couples and LGBT+ individuals as equally as any other intended parent(s). The surrogacy process is generally the same for same-sex couples as it would be for opposite-sex couples, except you’ll be more likely to need to work with an egg or sperm donor for your IVF process.  Pre-birth parentage orders are permitted in Delaware, so your legal process will likely also be no different. You can learn more about LGBT surrogacy in Delaware here.

Creating a DE Surrogacy Contract

The “Gestational Carrier Agreement Act” details how your Delaware surrogacy legal contract must be executed. Delaware law states the following:

The intended parents, the gestational surrogate and the surrogate’s spouse (if applicable) will all need to participate in this process, along with the two parties’ surrogacy attorneys. The surrogacy contract must be completed before you begin any medical procedures.

The purpose of having separate legal representation is so that each party is equally advocated for during the legal process. The purpose of having the surrogate’s spouse (when applicable) involved is because they will need to confirm that they have no parental rights to the child and agree to abide by the details of the surrogacy contract, as well.

Your surrogacy contract will cover a range of important topics, including the risks that each party agrees to, compensation for the surrogate, how everyone would feel about selective reduction and termination, the expectations and responsibilities for each party during the process and more.

Everyone involved will need to sign the contract in the present of two witnesses. Once that’s complete, you can move forward to the medical stage of the surrogacy process.

Determining Legal Parentage in Delaware

The laws on surrogacy in Delaware allow for pre-birth parentage orders, which confirm the legal parental rights of the intended parents upon the birth of the child. If the intended parents partner with a surrogate in another state, and her state laws don’t permit pre-birth orders, the intended parents can complete an adoption after birth in Delaware to secure their legal parental rights.

Even if the intended parents use donor egg, sperm or embryos to have a child via surrogacy, they can usually obtain a pre-birth order, because Delaware surrogacy laws state that “a donor is not a parent of a child conceived by means of assisted reproduction.” Likewise, surrogacy laws in Delaware state that the gestational carrier (and her spouse, if applicable) is “not a parent of a child born as a result of a gestational carrier agreement.” Regardless of whether or not an intended parent is genetically related to a child born through surrogacy, they are still the legal parents of that child under Delaware surrogacy law.

To learn more about what surrogacy laws in DE might affect you and your surrogacy journey as a surrogate or as a parent, consult with a surrogacy professional about your individual situation. Legal circumstances can vary from one case to the next, so contact a surrogacy professional now to learn more about DE surrogacy laws that will be relevant to you.