TITLE 13

Domestic Relations

CHAPTER 8. UNIFORM PARENTAGE ACT

Subchapter VIII. Gestational Carrier Agreement Act


This subchapter may be cited as the "Gestational Carrier Agreement Act."

79 Del. Laws, c. 88, § 8.;

(a) The purpose of this subchapter is to establish consistent standards and procedural safeguards for the protection of all parties to a gestational carrier agreement in this State and to confirm the legal status of children born as a result of these agreements. These standards and safeguards are meant to facilitate the use of this type of reproductive agreement in accordance with the public policy of this State.

(b) This subchapter does not apply to the birth of a child conceived by means of sexual intercourse.

79 Del. Laws, c. 88, § 8.;

In a proceeding to enforce a gestational carrier agreement, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:

(a) The individual is personally served with notice within this State;

(b) The individual submits to the jurisdiction of this State by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

(c) The individual resided in this State at the time the individual executed the gestational carrier agreement or consented to the embryo transfer;

(d) The individual executed a gestational carrier agreement with a person or persons who resided in this State at the time the gestational carrier agreement was executed and voluntarily submitted to the jurisdiction of this State in the gestational carrier agreement;

(e) The nonresident gestational carrier had, or is expected to have an embryo transfer performed in this State pursuant to a gestational carrier agreement;

(f) The nonresident intended parent(s) consented to a gestational carrier having an embryo transfer in this State pursuant to a gestational carrier agreement;

(g) The child was, or is expected to be born in this State as demonstrated by a provision in the gestational carrier agreement;

(h) The child resides in this State as a result of the acts or directives of the individual; or

(i) There is any other basis consistent with the Constitutions of this State and the United States for the exercise of personal jurisdiction.

79 Del. Laws, c. 88, § 8.;

A gestational carrier is not a parent of a child born as a result of a gestational carrier arrangement.

79 Del. Laws, c. 88, § 8.;

(a) Any person who is considered to be the parent of a child pursuant to this chapter shall have all the rights, responsibilities and obligations set forth in Chapter 7 of this title.

(b) The breach of the gestational carrier agreement by the intended parent(s) shall not relieve such intended parent(s) of the support obligations imposed by this chapter.

(c) In the event of a laboratory error in which the child conceived through means other than sexual intercourse is not genetically related to either of the intended parents, when the intent was for the child to be genetically related to 1 or both intended parents, the intended parents will be the parents of the child unless otherwise determined by a court of competent jurisdiction in an action which can only be brought by 1 or more of the genetic parents within 60 days of the date of the child's birth.

79 Del. Laws, c. 88, § 8.;

(a) Prior to executing an agreement to act as a gestational carrier, a woman must meet the following requirements:

(1) She is at least 21 years of age;

(2) She has given birth to at least 1 child;

(3) She has completed a medical evaluation;

(4) She has completed a mental health evaluation;

(5) She has been represented by independent legal counsel regarding the terms of the gestational carrier agreement and been advised of the potential legal consequences of the gestational carrier arrangement which legal expense shall be paid for by the intended parent(s) if requested; and

(6) She has or obtains prior to the embryo transfer a health insurance policy that covers major medical treatments and hospitalization and the health insurance policy has a term that extends throughout the duration of the expected pregnancy and for 8 weeks after the birth of the child; provided, however, that the policy may be procured by the intended parent(s) on behalf of the gestational carrier pursuant to the gestational carrier agreement.

(b) A person or persons intending to become a parent or parents, whether genetically related to the child or not, must meet the following requirements at the time the gestational carrier agreement is executed:

(1) He, she or they have completed a mental health evaluation; and

(2) He, she or they have independent legal representation regarding the terms of the gestational carrier agreement and have been advised of the potential legal consequences of the gestational carrier arrangement.

79 Del. Laws, c. 88, § 8; 70 Del. Laws, c. 186, § 1.;

(a) A gestational carrier agreement shall be enforceable if:

(1) It meets the requirements set forth in subsection (b) of this section, and

(2) It contains at a minimum each of the terms set forth in subsection (c) of this section.

(b) A gestational carrier agreement shall meet the following requirements:

(1) It shall be in writing;

(2) It shall be executed prior to the initiation of an embryo transfer in furtherance of the gestational carrier arrangement;

(i) By a gestational carrier meeting the eligibility requirements of § 8-806(a) of this title and, if married, the gestational carrier's spouse; and

(ii) By the intended parent(s) meeting the eligibility requirements of § 8-806(b) of this title. In the event an intended parent is married or a party to a civil union, both spouses must execute the gestational carrier agreement;

(3) The gestational carrier shall be represented by independent legal counsel and the intended parent or parents shall have been represented by independent counsel in all matters concerning the gestational carrier arrangement and the gestational carrier agreement;

(4) Each of the gestational carrier and the intended parent or parents shall have signed a written acknowledgement that he or she received information about the legal, financial, and contractual rights, expectations, penalties, and obligations of the gestational carrier agreement;

(5) If a gestational carrier agreement provides for the payment of compensation to the gestational carrier, the compensation shall have been placed in escrow with an independent escrow agent pursuant to an escrow agreement prior to the gestational carrier's commencement of any medical procedure (other than medical or mental health evaluations necessary to determine the gestational carrier's eligibility pursuant to § 8-806(a) of this title); and

(6) It shall be witnessed by 2 disinterested, competent adults.

(c) A gestational carrier agreement shall expressly provide the following:

(1) The written agreement of the gestational carrier to:

(i) Undergo embryo transfer and attempt to carry and give birth to the child; and

(ii) Surrender custody of all resulting children to the intended parent or parents immediately upon the birth of the child(ren);

(2) If the gestational carrier is married, her spouse:

(i) Acknowledges and agrees to abide by the obligations imposed on the gestational carrier pursuant to the terms of the gestational carrier agreement; and

(ii) Surrenders custody of all resulting children to the intended parent or parents immediately upon the birth of the child(ren);

(3) The right of the gestational carrier to utilize the services of a health care provider of her choosing, after consultation with the intended parents, to provide her care during the pregnancy; and

(4) The written agreement of the intended parent or parents to:

(i) Accept legal custody of all resulting children immediately upon birth; and

(ii) Assume sole responsibility for all resulting children immediately upon birth.

(d) A gestational carrier agreement shall be enforceable even though it contains 1 or more of the following provisions:

(1) The gestational carrier's agreement to undergo all medical exams, treatments, and fetal monitoring procedures that the physician recommends for the success of the pregnancy;

(2) The gestational carrier's agreement to abstain from any activities that the intended parent or parents or the physician reasonably believes to be harmful to the pregnancy and future health of the child, including, without limitation, smoking, drinking alcohol, using nonprescribed drugs, using prescription drugs not authorized by a physician aware of the gestational carrier's pregnancy, exposure to radiation, or any other activities proscribed by a health care provider;

(3) The agreement of the intended parent or parents to pay the gestational carrier reasonable compensation; and

(4) The agreement of the intended parent or parents to pay for or reimburse the gestational carrier for reasonable expenses (including, without limitation, medical, legal, or other professional expenses) related to the gestational carrier arrangement and the gestational carrier agreement.

(e) In the event that any of the requirements of this section are not met, a court of competent jurisdiction shall determine parentage based on evidence of the parties' intent.

(f) An escrow agent which enters into an escrow agreement with a party to a gestational carrier agreement which is governed by Delaware law, or with a Delaware resident who is a party to a gestational carrier agreement, consents to the jurisdiction of the Delaware courts for all proceedings related to the enforcement of the escrow agreement.

79 Del. Laws, c. 88, § 8; 70 Del. Laws, c. 186, § 1.;

Except as provided in this subchapter, no person shall be liable for non-negligent actions taken pursuant to the requirements of this subchapter.

79 Del. Laws, c. 88, § 8.;

Except as otherwise provided in this chapter, in the event of noncompliance with the requirements of this subchapter, a court of competent jurisdiction shall determine the respective rights and obligations of the parties.

79 Del. Laws, c. 88, § 8.;

(a) Except as expressly provided in the gestational carrier agreement and subsection (c) of this section, the intended parent(s) shall be entitled to all remedies available at law or equity.

(b) Except as expressly provided in the gestational carrier agreement and subsection (c) of this section, the gestational carrier shall be entitled to all remedies available at law or equity.

(c) Specific performance is not an available remedy for a breach by the gestational carrier of a gestational carrier agreement term that requires her to be impregnated.

79 Del. Laws, c. 88, § 8; 70 Del. Laws, c. 186, § 1.;

If any provision of this subchapter or its application to any person or circumstance is held to be invalid, the invalidity of that provision or application does not affect other provisions or applications of this subchapter that can be given effect without the invalid provision or application.

79 Del. Laws, c. 88, § 8.;

No action to invalidate a gestational carrier agreement meeting the requirements of § 8-807(b) of this title or to challenge the rights of parentage established pursuant to this subchapter shall commence after 12 months from the date of birth of the child subject to § 8-606(e) of this title.

79 Del. Laws, c. 88, § 8.;

(a) The rule of construction that statutes in derogation of the common law are to be strictly construed shall have no application to this subchapter. This subchapter shall be broadly construed to accomplish its intended purposes.

(b) The provisions of this subchapter shall apply only to agreements executed after the July 3, 2013, except proceedings for pre-birth determination of parentage pursuant to § 8-611(a) of this title which may be commenced on or after July 3, 2013.

79 Del. Laws, c. 88, § 8.;