(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 such gestational carrier and intended parent or parents 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.