Delaware

Surrogacy Law in Delaware

Delaware Surrogacy Law: Types of Surrogacy

In Delaware, Delaware Code 13, § 8-801 through § 8-810  is the established law toward gestational surrogacy. It dictates that, so long as all conditions are met, the gestational surrogate is not a parent to a child born of such an agreement. Parentage rights and responsibilities legally belong to the intended parents.

 

Traditional surrogacy (where the surrogate contributes genetically to the child) is not contemplated within the Delaware Gestational Carrier Agreement Act.  Legislation would be needed to amend the existing statute to bring traditional surrogacy within the protections of the current law.

Are There Surrogate Requirements in Delaware?

Yes, prior to executing an agreement to act as a gestational carrier, a woman must meet the following requirements to become a gestational surrogate in the state of Delaware:

  • She is at least 21 years of age;
  • She has given birth to at least 1 child;
  • She has completed a medical evaluation;
  • She has completed a mental health evaluation;
  • She has been 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; and
  • She has or obtains 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.

Does Delaware Surrogacy Law Allow for Pre-Birth Orders?

Parentage Orders: Petitions for pre-birth orders are now routinely granted to intended parents.

For pre-birth orders, intended parents can be declared legal parents regardless of whether either parent is genetically related to the child.  Parental rights are also determined regardless of the marital status of the parents.  Single men have been found to be the parents of children born through surrogacy (i.e., only one parent, the father, is listed on the birth certificate).

Yes

Married heterosexual couples
Unmarried heterosexual couples
Married heterosexual couples
Unmarried heterosexual couple
Married same sex couples
Unmarried same sex couples
Single parent

No

For pre-birth orders, the conditions under which intended parents can be declared legal parents if neither parent is genetically related to the child are listed below:

Yes

Married heterosexual couples
Unmarried heterosexual couples
Married same sex couples
Unmarried same sex couples
Single parent

No

Whose names go on the birth certificate in Delaware?

Intended parents are listed with the designation “parent and parent” if they are of the same sex.

A same-sex male couple can obtain a birth certificate naming both fathers as the parents using a post-birth order, but as with heterosexual parents, a pre-birth petition is recommended The Delaware Office of Vital Records will honor out of state court orders (such as for a second-parent adoption) to  issue a new birth certificate.

Surrogacy Conditions for Same-Sex Couples in Delaware

Are the same as for heterosexual couples. Same sex couples can file for pre-birth orders which take effect at the birth of the child, just as heterosexual couples file.

Are There Options for Unmarried Intended Parents in the state of Delaware?

Yes, marriage is not a requirement under the statute.

Egg Donation Law

Under Delaware law, donors are not parents.  They may be known or anonymous depending on the preference of the parties.

State law information verified by the following (ART) Assisted Reproductive Law attorney licensed in Delaware*

Suzanne I Seubert, Esq.
20 Montchanin Road, #220
Wilmington, DE 19806
Phone: 302.661.0400
https://siseubertlaw.com

* This information is for general informational purposes only and is not, nor is it intended to be, legal advice. We strongly recommend retaining legal counsel, knowledgeable of reproductive law in the state.