Delaware Surrogacy Law
Summary: While the Delaware statutes do not address surrogacy agreements, the ruling of at least one court suggests that those agreements go against the public policy of the state. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: In the 1988 case of Hawkins v. Frye, a Delaware Family Court held that a “contractual agreement to terminate parental rights . . . is against the public policy of this [s]tate and may not be enforced by the [c]ourt.” Hawkin s did not involve a surrogacy agreement, but rather concerned a contract to terminate parental rights through a “Property Division Agreement” after a divorce. The Court noted that the state legislature had not “provide[d] for termination of parental rights by contractual agreement of the parents” and analogized the case to the well-publicized Baby M. surrogacy case in New Jersey. The Delaware court held that “the receipt of money in connection with an adoption is barred by Delaware law,” and the termination of parental rights through contractual agreement is forbidden. Every surrogacy agreement terminates the parental rights of someone who has a legal claim to parentage, so the precedent of Hawkins suggests that all surrogacy agreements are against the public policy of Delaware law.
There is no explicit prohibition in Delaware on LGBT couples jointly adopting a child, nor is there an explicit prohibition on LGBT individuals adopting a child of their same-sex partner. In fact, a Delaware Family Court determined in the 2001 case of In re Hart that an individual had a right to petition to adopt the child of his or her same-sex partner.
Citations: In re Hart, 806 A.2d 1179 (Del. Fam. Ct., 2001);
Hawkins v. Frye, 1988 Del. Fam. Ct. LEXIS 31 (Del. Fam. Ct. 1988).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 9/9/2009