Surrogacy in Delaware

Gestational Surrogacy in Delaware

Surrogacy is legal in Delaware. Delaware may be small but it sure is mighty when it comes to surrogacy. Gestational surrogacy is permitted by statute (Delaware Code 13, § 8-801 – § 8-810) for any and all intended parents regardless of sexual orientation, marital status, and genetic relationship to the child.

Understanding Surrogacy Laws in Delaware

Legal Parentage

In Delaware, parentage is established pre-birth and the statute explicitly provides that the gestational carrier is “not a parent of a child born as a result of a gestational carrier arrangement” so long as specified requirements are met in the arrangement.

Backing up a step, the legal parentage process is the critical step where parentage is determined. Depending on where your child is born, the birth parentage orders will be completed either pre- or post-birth. Every state, whether pre-birth, post-birth, or some combination of the two, has its own unique process and requirements. Working with an experienced Assisted Reproductive Technology lawyer and reputable agency is critical to the success of a surrogacy journey. One of the many benefits of working with an established agency like ConceiveAbilities is the legal oversight, education, and support provided to both intended parents and gestational surrogates.

Pre-Birth Orders

The pre-birth process means that the relevant state law provides an avenue for the parties to present an order to a judge for entry prior to the child being born that establishes the intended parent(s) as the legal parents of the child. It will also likely direct the hospital to release the child to the intended parents after discharge and order the Delaware Office of Vital Records to name the intended parents on the child’s birth certificate.

Post-Birth Processes

The post-birth process is overall procedurally the same as the pre-birth, but it occurs after the child is born. Often this is because the relevant state law contemplates the existence of a live child before anything can be filed or entered. But the ultimate result is the same – a birth certificate with the intended parents’ names and secure legal parentage of the child in favor of the intended parents. Post-birth court orders may be necessary if the pre-birth order process isn’t followed, ensuring legal parentage.

Common Questions About Delaware Surrogacy Law

Do You Need a Medical Need for Surrogacy in Delaware?

Delaware does not require a medical need for surrogacy.

Are There Any Requirements or Specifications for Intended Parent(s) as It Relates to Marital Status?

Delaware permits married couples, partners and single individuals to pursue surrogacy, regardless of marital status.

Do Intended Parent(s) need a genetic connection to the embryo?

In Delaware, intended parents do not need a genetic connection to the embryo.

Can International Intended Parent(s) Pursue Surrogacy in Delaware?

International parents can pursue surrogacy in Delaware. Learn more about becoming a parent with international family building.

Can LGBTQIA+ Intended Parents safely pursue surrogacy in your state?

Yes, Delaware allows surrogacy for all individuals including the gay and LGBTQ+ community, regardless of sexual orientation. Learn more about surrogacy and the LGBTQ+ Community.

Can I Use My Own Surrogate? Is Altruistic Surrogacy Permitted?

Yes, altruistic surrogacy is permitted in Delaware. Even if you have a surrogate, you may still choose to partner with a surrogacy agency to navigate your journey.

Are there any residency requirements for either Intended Parent(s) or surrogates in Delaware?

Generally no. Intended parents do not need to be Delaware residents for the Act to carry out a surrogacy journey in Delaware. Similarly, Gestational Carriers are not required to reside in Delaware, but for the Act to cover their agreement, they usually must give birth within the state.

Are there any written laws (statute or case law) relating to the rights of gestational carriers?