Thanks to the gestational carrier agreement Act, Delaware offers a clear and secure legal path for surrogacy that few other states can match. But even with excellent laws, your safety depends on the specific agreement you sign before the medical process begins.
This contract is the roadmap for your entire journey. It takes the state's strong legal protections and applies them to your unique relationship, securing your financial future, parental rights, and medical expectations. Whether you are an intended parent or a surrogate, this document allows you to enter the process with total clarity.
If you are ready to build your family with a team that prioritizes your legal security, time, and support, American Surrogacy is ready when you are.
What Should Be Included in a Surrogacy Contract?
Your surrogacy contract, known legally in Delaware as a gestational carrier agreement, is the definitive rulebook for your journey. It anticipates various scenarios so you are never left guessing how to handle a situation. While its primary legal function is to establish parentage and financial terms under Delaware Code, its practical function is to ensure that the intended parents and the surrogate are legally aligned before an embryo transfer occurs.
A complete contract goes far beyond just financial details. It creates a framework for a respectful and successful partnership by addressing several key pillars mandated by state law and best practices:
- Financial Terms: This section explicitly lists base compensation, monthly allowance amounts, and caps on expenses like travel or lost wages, ensuring financial transparency.
- Medical expectations: Setting expectations around transfers, medications, termination, and more.
- Social Expectations: It outlines how you will interact, including the frequency of updates, preferred methods of communication, and attendance at key medical appointments.
- Lifestyle choices: Detailing allowable travel, diet, prohibited activities, and more.
- Birth Plan: It details the hospital experience, from who is allowed in the delivery room to who will hold the baby first.
- Legal Parentage: It confirms the intended parents as the sole legal parents, which is the necessary first step for Delaware courts to issue a pre-birth order.
- Risk Acknowledgement: Both parties formally acknowledge the potential risks associated with fertility treatments and pregnancy.
By clarifying these pillars early, you can understand surrogacy contract basics and build a relationship based on trust rather than ambiguity.
Legal Clearance: The Final Step Before Transfer
The transition from "match" to "pregnancy" cannot happen without legal clearance. This is a formal milestone where your attorneys verify that the contract is fully executed and that all legal requirements under the Delaware Gestational Carrier Agreement Act have been met. It effectively gives the fertility clinic permission to start the medical procedures for the embryo transfer.
The path to legal clearance is a structured process designed to protect everyone’s interests:
Step 1. Drafting: The intended parents’ attorney prepares the contract based on terms agreed upon during matching.
Step 2. Independent Review: The surrogate reviews this document with her own independent attorney.
Step 3. Finalization: The attorneys collaborate to finalize the language, ensuring both sides are comfortable with clauses regarding compensation, insurance, and medical decisions.
Step 4. Execution: The contract is signed by the intended parents, the surrogate, and her spouse (if applicable) prior to the commencement of any medical procedures involving embryo transfer.
Step 5. Clearance: Once signed, a clearance letter is sent to the clinic.
You can learn more about how agencies support this legal process for parents here.
Can Surrogacy Contracts Be Enforced in Delaware?
Yes. The Gestational Carrier Agreement Act (Title 13, Chapter 8) provides a clear statutory basis for these contracts, removing the legal uncertainty that exists in many other states.
Under Delaware law, surrogacy contracts are valid and enforceable provided they meet specific criteria:
- Age Requirements: The surrogate must be at least 21 years old.
- Prior Births: The surrogate must have given birth to at least one child previously.
- Evaluations: Both the surrogate and the intended parents must have completed medical and mental health evaluations.
- Timing: The agreement must be executed before the initiation of an embryo transfer.
Because of this strong legal framework, the "intent" of the parties is the deciding factor in parentage. The contract proves that intent, ensuring that the intended parents are recognized as the legal parents from the moment of birth. For surrogates, this law guarantees that the financial terms of the contract are enforceable, protecting her right to the compensation she was promised. You can read more about Delaware surrogacy laws to see how these statutes protect you.
What Happens if a Surrogacy Contract Is Breached?
Breaches are uncommon in professionally managed journeys, but a responsible contract must still address them. The agreement will outline specific remedies for various types of violations to ensure issues can be resolved fairly without jeopardizing the child.
- Parental Breach: If intended parents breach the contract—typically by missing a payment—the surrogate has legal recourse to recover those funds. However, the parents cannot simply "quit" the surrogacy; under Delaware Code Title 13, they are the legal parents and remain responsible for the child regardless of any contract disputes.
- Surrogate Breach: If a surrogate breaches a non-medical term, such as smoking or traveling to a restricted area, the contract usually creates financial consequences. This might involve a reduction in compensation or reimbursement for costs incurred due to the breach.
It is critical to understand that courts will not force specific performance for medical procedures. A surrogate cannot be compelled to undergo a C-section or abortion against her will, as her bodily autonomy is protected. You can find more details on how these situations are handled in our guide to legal considerations for parents.
Fair Surrogacy Compensation in Delaware and Payment Structure
Compensation is a vital part of the agreement, acknowledging the surrogate's time, physical effort, and the restrictions placed on her daily life. A well-structured contract ensures that this compensation is fair, timely, and secure for everyone involved.
The financial package is generally divided into predictable categories to avoid confusion:
- Base Compensation: This is the primary fee for carrying the pregnancy, paid in monthly installments typically beginning after a heartbeat confirmation.
- Monthly Allowance: A stipend covers miscellaneous costs like vitamins, parking, and gas, so the surrogate isn’t out-of-pocket for small expenses.
- Milestone Bonuses: Payments for specific medical events, such as the start of injectable medications or the embryo transfer procedure.
- Lost Wages: Provisions protecting the surrogate’s income if she is ordered on bed rest or must miss work for appointments.
To ensure security, Delaware law explicitly requires that compensation be placed in an escrow account with an independent escrow agent prior to the surrogate commencing any medical procedures. This statutory requirement ensures the money is safe and available when needed. You can see a full breakdown of Delaware surrogate compensation here.
Medical Decisions and Control During Pregnancy
Balancing the intended parents' desire for involvement with the surrogate's bodily autonomy is one of the contract's most important jobs. The agreement establishes a framework for decision-making that respects both parties while prioritizing the health of the baby.
Legally, the surrogate always retains the right to make decisions about her own body. However, the contract includes her commitment to follow the medical advice of the IVF physician and obstetrician. This includes taking prescribed medications, attending appointments, and adhering to health guidelines to give the baby the best possible start.
The contract also secures the intended parents' rights to information. It grants them access to medical records and allows them to communicate with the doctors, ensuring they are not left in the dark about their child's development. Additionally, the parties will agree beforehand on protocols for invasive procedures like amniocentesis. You can find more information about legal rights in surrogacy here.
Termination and Selective Reduction Clauses
Termination and selective reduction are deeply personal topics, and the contract ensures that no one is caught off guard by these decisions.
- Selective Reduction: Typically refers to reducing a high-order multiple pregnancy (like triplets) to a safer number.
- Termination: Refers to ending a pregnancy due to severe genetic or physical abnormalities.
The contract will clearly state the intended parents' wishes regarding these scenarios. It is essential that the surrogate shares these values before matching. If the parents would choose to terminate for a specific medical condition, they must be matched with a surrogate who would be willing to undergo that procedure.
If a conflict arises—such as the surrogate refusing a termination requested by the parents—the contract outlines the financial consequences, but it will never authorize forced medical compliance. Addressing this upfront ensures mutual respect and understanding. Be sure to review the Delaware surrogacy laws to understand the legal context for these decisions.
Lifestyle Clauses: Travel, Diet, and Daily Life Considerations
Since intended parents often cannot be present for the daily reality of the pregnancy, the contract uses "lifestyle clauses" to provide reassurance and safety standards. These are designed to minimize risk without being overly controlling of the surrogate's life.
Common provisions in Delaware contracts include:
- Travel Restrictions: Limiting travel during the late stages of pregnancy to ensure the birth happens at the chosen hospital in Delaware, and restricting travel to disease-prone areas (like Zika zones).
- Dietary Guidelines: Following standard prenatal advice, such as avoiding high-mercury fish or unpasteurized foods.
- Substance Prohibitions: A strict ban on alcohol, tobacco, and non-prescribed drugs to protect fetal health.
- Environmental Safety: Guidelines to avoid hazards like harsh chemicals or changing cat litter to prevent toxoplasmosis.
These clauses help build trust, knowing that the pregnancy is being cared for with the highest standards.
Delivery Plans and Post-Birth Expectations
The birth is the celebration everyone is working toward, and the contract ensures it remains a joyous occasion by planning the details in advance. The birth plan section acts as a script for the hospital stay, reducing stress for everyone involved.
It confirms that the intended parents will be present in the delivery room to witness the birth, barring any emergency medical restrictions. It also outlines preferences for the immediate moments after birth, such as who cuts the cord and who holds the baby first. Establishing these details early prevents awkwardness and allows everyone to focus on the baby.
The contract also supports the surrogate’s recovery. If a C-section is required, she is compensated for the additional recovery time and provided with support for tasks like housekeeping or childcare. If breast milk pumping is agreed upon, those terms are also formalized here. Read more on pre-birth orders to see how legal parentage is finalized alongside these delivery plans.
Insurance Requirements for Surrogacy Journeys
Medical costs in the US can be staggering, so the contract ensures that a comprehensive insurance safety net is in place. You cannot proceed without verifying that the pregnancy and delivery will be covered.
Delaware is unique in that it has one of the most inclusive insurance mandates in the country regarding fertility care.
- Health Insurance Review: A professional review is conducted to see if the surrogate's policy or the intended parents' policy covers the pregnancy. Delaware Code Title 18 requires coverage for fertility care services, including IVF, for certain plans, which can sometimes extend benefits to surrogacy arrangements.
- Life Insurance: A term life policy purchased by the parents to protect the surrogate’s family in the unlikely event of a tragedy.
- Disability Insurance: Coverage to replace the surrogate’s income if a complication prevents her from working for an extended period.
If a specific policy is needed, the intended parents must purchase a specific surrogacy-maternity insurance policy for her. Additionally, you should check states that mandate IVF coverage to see if Delaware's specific mandates apply to your insurance plan.
Agency vs. Independent Surrogacy: Legal and Emotional Considerations
While you can legally sign an independent surrogacy contract in Delaware, doing so without agency support removes a critical layer of protection. Independent journeys require you to vet your own professionals and manage the relationship dynamics without a neutral third party.
Agencies like American Surrogacy act as a safeguard by providing:
- Professional Vetting: Pre-screening every candidate to ensure you are matching with someone who is safe, committed, and legally qualified.
- Financial Management: Handling the complex logistics of insurance and escrow so that money never becomes a point of tension.
- Mediation Support: Offering a neutral third party to facilitate communication if a disagreement arises over contract terms or expectations.
Your contract is the foundation of your family’s future. It deserves to be built with expertise and care. You can explore more about our services regarding surrogacy insurance for intended parents and agency support.
Navigating surrogacy contracts in Delaware is the most vital step in securing your journey. At American Surrogacy, we provide the clarity and security you need to move forward with total confidence. When you are ready, contact us to start this life-changing journey.