What You Need to Know About Surrogacy in Delaware

What You Need to Know About Surrogacy in Delaware

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Delaware Surrogacy Laws and Information

If you’re considering surrogacy in Delaware, you have chosen one of the safest states in the U.S. to reach your surrogacy goals. Surrogacy laws in Delaware clearly define a legal path for intended parents and prospective surrogates, allowing for an ease in establishing parental rights and protecting the interests of both parties every step of the way.

Like you would in any state, you should always learn as much as you can about surrogacy in Delaware before deciding it is right for you. There are many things to consider about surrogacy laws in Delaware and your personal preferences and goals before you commit to this family-building process. We encourage you to reach out to a local surrogacy attorney in Delaware for the most updated and accurate information about how Delaware surrogacy laws will affect your personal journey.

If you ever have any questions about the surrogacy process in general, please feel free to contact the surrogacy specialists at American Surrogacy for more information. In the meantime, to aid in your research, we’ve answered some of the most common questions about surrogacy in Delaware below.

Q: Is surrogacy legal in Delaware?

A: Surrogacy is legal in Delaware, as long as it follows the process outlined in a 2013 state law (similar to the California approach). The surrogacy laws in Delaware detail the qualifications prospective surrogates and intended parents must meet, as well as how a surrogacy contract is drafted. In turn, the process of surrogacy in Delaware is a safe and well-regulated one that many intended parents and surrogates successfully complete.

Q: Is compensated surrogacy legal in Delaware?

A: Yes. A surrogate’s right to receive compensation is protected in Delaware surrogacy laws, which confirm that this kind of surrogacy contract is enforceable.

Q: Is traditional surrogacy legal in Delaware?

A: Traditional surrogacy is not recognized by Delaware’s surrogacy laws, known as the “Gestational Carrier Agreement Act.” Therefore, the legality of this kind of surrogacy is unclear.  Many surrogacy professionals would advise against this path anyway, due to the potential legal and emotional complications that could arise.

Q: What does a surrogacy agreement in Delaware cover, and how does the legal process work?

A: Delaware surrogacy laws set out specific requirements for all gestational surrogacy contracts created in this state. A surrogacy contract, by law, must be executed prior to beginning the surrogacy medical process (which many fertility clinics require anyway). Both parties must be represented by independent surrogacy attorneys in Delaware, and the signing of the contract must be witnessed by two people who are not parties to the agreement.

By law, surrogates in Delaware must:

Intended parents must:

  • Have completed a mental health evaluation
  • Have obtained legal representation and been advised of the potential legal consequences of their surrogacy contract

Any compensation a surrogate receives must be carried out by an escrow agent and should also be detailed in the surrogacy contract.

The intended parents, the surrogate and her spouse (if applicable) must consent to and sign the surrogacy contract before it is finalized. Only then can the medical process of surrogacy begin.

Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Delaware?

A: As long as the proper surrogacy laws in Delaware are followed during the drafting of the agreement, surrogacy contracts are enforceable for intended parents and surrogates.

Q: What are the surrogacy laws in Delaware on parentage orders?

A: Delaware surrogacy laws state that the parentage of a child born via surrogacy can be declared by the court pre-birth with the order taking effect at the time of birth. Intended parents may be married couples, unmarried couples, or single people with or without a genetic relationship to the child born via surrogacy.

The Delaware Gestational Carrier Agreement Act also states that a gestational carrier is “not a parent of a child born as a result of a gestational carrier agreement.”

Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Delaware?

A: No. All international intended parents would presumably be subject to the same Delaware surrogacy laws as domestic intended parents.

Q: When do intended parents need to complete an adoption after birth? 

A: Because all intended parents in Delaware can presumably obtain a pre-birth order, adoptions after birth are usually not necessary. However, if intended parents work with a surrogate in another state, they can always return to Delaware to complete an adoption after birth if the surrogate’s state laws do not allow for them to obtain a pre-birth order.

Q: Does Delaware allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?

A: Delaware does allow second-parent adoptions for intended parents who have yet to establish their parental rights. As mentioned, this legal process is usually taken if intended parents complete a surrogacy in another state and return to Delaware to take advantage of second-parent adoption laws or, if they are married, to complete a stepparent adoption if they have not already done so.

Q: What happens in cases where intended parents use a donor egg, sperm or embryo?

A: Intended parents who complete a surrogacy in Delaware are usually able to obtain a pre-birth order regardless of whether they used a donor egg, sperm or embryo. Delaware laws state that “a donor is not a parent of a child conceived by means of assisted reproduction.”

Q: Are there any additional laws impacting same-sex surrogacy in Delaware?

A: No. LGBT intended parents in Delaware are treated the same as any heterosexual intended parents pursuing the surrogacy process.

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If you would like to be a surrogate or an intended parent in a Delaware surrogacy, American Surrogacy can help you achieve your surrogacy dreams and goals. Our surrogacy specialists can provide professional case management, guidance and support throughout your Delaware surrogacy process whenever you are ready. To learn more about our agency program or to begin your surrogacy in Delaware today, please call us at 1-800-875-2229(BABY).

This article is not intended to be and should not be taken as legal advice. Surrogacy laws in Delaware are always subject to change, so please contact a local surrogacy attorney in Delaware for the most recent information about the current state of surrogacy in Delaware.