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Delaware Surrogacy Law Overview

The Center for Surrogate Parenting walks you through Delaware surrogacy law

Surrogacy is a beautiful family-building method. However, it can be complex, especially when it comes to the laws surrounding it. Thankfully, our experienced surrogacy agency is well-versed in the surrogacy laws of each state, including Delaware surrogacy law. In fact, the Center for Surrogate Parenting (CSP) has completed finalizations of parental rights in this state.

As the oldest surrogacy agency in the world, we have helped U.S. and international parents to welcome healthy babies with help from U.S. surrogates. We are proud to say that we have never experienced issues with intended parents being able to bring their babies home.

To help you learn more about Delaware surrogacy law and how to create a surrogacy contract, we’ve included some basic information below. You can also contact us for more information.

    • Is a surrogacy contract valid and enforceable?

      Delaware has established the requisite elements for an enforceable surrogacy contract, the rights and responsibilities of all parties involved and clearly provides for the qualifications for a suitable surrogate.

    • Does the state have surrogacy laws and/or case law?

      Gestational surrogacy is expressly permitted by statute. The requirements and enforcement of surrogacy arrangements are specifically and clearly established by law, as of 2013.

    • Are the courts typically favorable or unfavorable towards surrogacy arrangements?

      Because Delaware clearly allows surrogacy arrangements and specifically outlines the requirements of them, courts are highly favorable to surrogacy arrangements, especially when they conform to the statutory requirements.

    • Is commercial surrogacy legal?

      Yes, Delaware statutorily permits compensation to the surrogate. Commercial surrogacy is legal in Delaware and the intended parents are permitted to compensate the surrogate for her time and expenses. Such compensation is typically arranged for in a surrogacy contract.

    • Is traditional surrogacy permitted?

      Yes, Delaware does not address traditional surrogacy by statute, so it is not expressly prohibited or permitted.

    • Is gestational surrogacy allowed?


    • What are the requirements for an enforceable surrogacy contract?

      A surrogacy contract shall be binding and enforceable if it meets the following legal requirements. It must be in writing, signed by all parties and witnessed by at least two disinterested, competent adults. It must be executed prior to the start of any medical procedures. The surrogate and intended parents must meet specific requirements. The agreement must also include provisions that discuss the legal, financial and contractual rights, expectations, penalties and obligations of the surrogacy agreement. The intended parents and the surrogate (and her spouse, if applicable) must have independent legal counsel.

    • Are pre-birth and post-birth orders permitted?

      Pre-birth (and post-birth) orders are permitted. Delaware specifically allows for pre-birth parentage orders. However, enforcement of such orders will be stayed until the birth of the child.

      Pre-birth parentage orders are commonly granted, and are available to any intended parent, regardless of marital status or genetic relationship to the child. Same-sex parents are treated like any other heterosexual parent in Delaware.

    • Can both intended parents be declared the legal parents?

      Yes. Both intended parents can be declared the legal parents in a pre-birth order, regardless of marital status or sexual orientation. Additionally, it doesn’t matter whether the intended parents used donor sperm or eggs, or if they are genetically related to the child.

    • Will the state honor a pre-birth order issued by another state?


    • What do intended parents need to know about getting the baby’s birth certificate?

      Parents will receive the baby’s birth certificate 10 days after birth. Same-sex parents are listed as Parent and Parent.

      International gay couples might be able to obtain an initial birth certificate that names the biological father and surrogate, but it is uncertain because this has never been done before in Delaware. They can subsequently obtain a birth certificate that names the biological father or both fathers only, with no mention of the surrogate, by obtaining a post-birth parentage order.

    • Are post-birth adoptions permitted?

      Yes, post-birth adoptions are allowed in Delaware. However, because parentage orders are presumably available to any intended parent, they are often unnecessary. If a parentage order is unable to be obtained (if the surrogate resides in a state that does not permit pre-birth orders), then Delaware allows for second parent and stepparent adoptions.

    • Are second-parent adoptions permitted?

      Yes, second parent adoptions are permitted and available to unmarried couples.

    • Are stepparent adoptions permitted?

      Yes, stepparent adoptions are permitted and are available to married couples.

VorzimerMasserman Disclaimer: This is a summary for informational use only and should not be relied upon for legal advice. Please note that the state laws regarding surrogacy frequently change and vary from county to county. The attorneys of VorzimerMasserman are only licensed in California. VorzimerMasserman shall not be responsible for any liability associated with this list.