Gestational surrogacy contracts are enforceable by the Courts of the state of Delaware. State law however does not designate whether traditional surrogacy agreements are enforceable.
Compensation may be granted in addition to the reimbursement of expenses incurred.
Intended parents may enter enforceable gestational surrogacy agreements regardless of their marital status.
State law however limits some of the rights a person acting as a surrogate may have:
- A surrogate must be represented by legal counsel, and the intended parents must pay for it.
- A surrogate has the right to choose her own healthcare provider but she must consult with the intended parents regarding her choice.
- A surrogate must have viable health insurance that is established prior to an embryo transfer and must remain viable until at least 8 weeks after the end of the pregnancy. The party responsible for payment is not defined by the law.
- A surrogate must be willing to undergo all medical exams and treatments as recommended by the physician and also may restrict the surrogate from engaging in risky activities that the intended parent or doctor may deem “harmful to the pregnancy and future health of the child”.
- State law requires that payments must be managed in an escrow account prior to the commencement of any medical procedures, other than evaluations. The escrow agent must consent to the jurisdiction of the courts of the State of Delaware.