Gestational Surrogacy is permitted by Delaware Code 13, § 8-801 through § 8-810. Under the statute, so long as the specified requirements are met, the Gestational Carrier is “not a parent of a child born as a result of a gestational carrier arrangement.”
Do courts grant pre-birth parentage orders? Yes, but under Delaware Code § 8-611, enforcement of the order is stayed until the child’s birth.
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
What are the bases for venue? County of the Intended Parents’ residence, county of the Gestational Carrier’s residence, county of the child’s birthplace, location of the embryo transfer, or location where the surrogacy agreement was signed.
Do results vary by venue? No, but the timing my vary.
Are motions for venue accepted? No
Is a hearing required to obtain a pre-birth order? No
Is a pre-birth order possible in Delaware based on a Gestational Carrier’s plan to deliver in Delaware, if no party lives in Delaware? Yes
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? Uncertain. This has never been done, and it is not clear that the statute would permit this.
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes, both fathers can be named on the birth certificate
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Delaware (i.e., neither of the Intended Parents lives in Delaware)? No
If no, will Delaware Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes, in most cases.
Note: This situation typically arises if the child is born outside of the state. The parents then return to Delaware to obtain a second parent adoption or stepparent adoption in Delaware.
Will courts in Delaware grant second parent or stepparent adoptions to heterosexual couples living in Delaware? Yes, for the parent has has not yet been declared the parent.
Does the couple need to be married? No
Will courts in Delaware grant second parent or stepparent adoptions to same-sex couples living in Delaware? Yes, same-sex parents are treated like any other parent. Therefore, same-sex couples cannot get one just for "belts and suspenders", but can get one if, for example, only the biological father was declared to be the legal parent.
If yes, does the couple need to be married? No
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? Yes, the statute is gender neutral and applies to both egg donors and sperm donors. The Delaware Code provides: “A donor is not a parent of a child conceived by means of assisted reproduction.”
The legality of Traditional Surrogacy in Delaware is unclear, as it is not recognized by Delaware’s statute, which is entitled the “Gestational Carrier Agreement Act”. It is unknown, therefore, whether Family Court would recognize Traditional Surrogacy.
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