Gestational Surrogacy Regulations in Delaware

Overview

Gestational Surrogacy is expressly permitted by statute and the requirements and
enforcement of surrogacy arrangements are specifically and clearly established in Delaware
Code §8-801 through 8-810.

Intended Parents

Age requirement:
18 years of age or older
Marriage requirement:
No
Married heterosexual couple:
Yes
Married same-sex couple:
Yes
Unmarried heterosexual couple:
Yes
Unmarried same-sex couple:
Yes
Resident status:
No* (see DE specific requirements)
Independent legal counsel:
Yes

Gestational Surrogates

Age requirement:
21 years of age or older
Marriage requirement:
No
If married/partnered:
husband’s/partner’s sperm cannot be used
Surrogate status:
Gestational Surrogacy only
Resident status:
No* (See DE specific requirements)
Use of own embryos:
No
Independent legal counsel:
Yes
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Embryos

Intended Parents own sperm:
Yes
Intended Parents own eggs:
Yes
Intended Parents using sperm donor:
Yes
Surrogate status:
Gestational Surrogacy only
Intended Parents using egg donor:
Yes
Intended Parents using both egg and sperm donor:
Yes

Birth of Child

Birth in Delaware:
Yes
Birth outside of Delaware:
Yes, however, discuss with your legal counsel

Pre-Birth Orders are commonly granted, and are available to any Intended Parent, whether
they be single or a couple, or genetically related to the child or not. Same-sex Intended
Parents are treated like any other heterosexual couple in Delaware.

Parentage

Pre-Birth Orders:
Yes
Hearing to obtain Order:
No
Post-Birth Orders:
Yes

General Information

Will Delaware Vital Records honor a Pre-Birth Order from another state:
Yes
What is the typical time frame to obtain a birth certificate after delivery:
10 days
How are same-sex parents named on the final birth certificate:
Parent and Parent
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier:
Yes*
Can an international same-sex male couple subsequently obtain a birth certificate naming only the biological father or both fathers with no mention of the Gestational Carrier:
Yes

Second Parent and Stepparent Adoptions for Delaware Residents:

*This situation typically arises if the child is born outside of Delaware. The parents then return to Delaware to obtain a second parent adoption or stepparent adoption in Delaware. Please consult with your attorney on this matter if this issue is to arise*

Traditional Surrogacy in Delaware?

*Traditional Surrogacy legality in Delaware is unclear. Traditional Surrogacy is not recognized by the statute, nor is there any precedent case law. Please consult with a local attorney to determine if you can move forward with traditional surrogacy*
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