Surrogacy in South Dakota
Welcome to our comprehensive guide on surrogacy laws in South Dakota. If you're considering surrogacy in the Mount Rushmore State, it's crucial to understand the legal landscape surrounding this life-changing process. For a surrogacy journey, the applicable law is typically based on where the surrogate lives and delivers the child.
This surrogacy guide navigates you through South Dakota’s legal framework for surrogacy agreements. Explore the rights and responsibilities of all involved parties, from intended parents to surrogates, and explore the detailed requirements for surrogacy contracts. Learn everything you need to know about gestational surrogacy in South Dakota.
Gestational Surrogacy in South Dakota
Surrogacy is legal in South Dakota. Although there is no applicable statute, courts in South Dakota grant pre-birth declaratory judgments of parentage regardless of marital status, sexual orientation, or genetic relationship to the child. As such, gestational surrogacy is freely practiced in South Dakota.
Understanding Surrogacy Laws in South Dakota
Parentage is established in South Dakota via pre-birth declaratory judgments of parentage regardless of marital status, sexual orientation, or genetic relationship to the child.
Legal Parentage
Backing up a step, the legal parentage process is the critical step where parentage is determined. Depending on where your child is born, the birth parentage orders will be completed either pre- or post-birth. Every state, whether pre-birth, post-birth, or some combination of the two, has its own unique process and requirements. Working with an experienced Assisted Reproductive Technology lawyer and reputable agency is critical to the success of a surrogacy journey. One of the many benefits of working with an established agency like ConceiveAbilities is the legal oversight, education, and support provided to both intended parents and gestational surrogates.
Pre-Birth Orders
The pre-birth process means that the relevant state law provides an avenue for the parties to present an order to a judge for entry prior to the child being born that establishes the intended parent(s) as the legal parents of the child. It will also likely direct the hospital to release the child to the intended parents after discharge and order the South Dakota Office of Vital Records to name the intended parents on the child’s birth certificate.
Post-Birth Processes
The post-birth process is overall procedurally the same as the pre-birth, but it occurs after the child is born. Often this is because the relevant state law contemplates the existence of a live child before anything can be filed or entered. But the ultimate result is the same – a birth certificate with the intended parents’ names and secure legal parentage of the child in favor of the intended parents. Post-birth court orders may be necessary if the pre-birth order process isn't followed, ensuring legal parentage.
Common Questions About South Dakota Surrogacy Law
Do You Need a Medical Need for Surrogacy in South Dakota?
Although there is no specific law on this, it is currently best practice to only pursue surrogacy in South Dakota if you have a medical need, which means surrogacy is only permitted if there is a medical reason a person cannot carry their own child. Some examples of medical needs include unexplained infertility, lack of a uterus or vagina, scarring on the uterus, and a history of complicated pregnancies or miscarriage(s). Existing medical conditions like heart disease, kidney disease, diabetes and pregnancy conditions such as preeclampsia and gestational diabetes that could impact a woman’s ability to carry a child to term or put her life at risk would also qualify as a medical need. Maine does require intended parents to undergo a medical evaluation.
Are There Any Requirements or Specifications for Intended Parent(s) as It Relates to Marital Status?
South Dakota permits married couples, partners, and single individuals to pursue surrogacy, regardless of marital status.
Do Intended Parent(s) need a genetic connection to the embryo?
In South Dakota, intended parents do not need a genetic connection to the embryo.
Can International Intended Parent(s) Pursue Surrogacy in South Dakota?
International parents can pursue surrogacy in South Dakota. Learn more about becoming a parent with international family building.
Can LGBTQIA+ Intended Parents safely pursue surrogacy in your state?
Yes, South Dakota allows surrogacy for all individuals including the gay and LGBTQ+ community, regardless of sexual orientation. However, how parentage is established may vary. Learn more about surrogacy and the LGBTQ+ Community.
Can I Use My Own Surrogate? Is Altruistic Surrogacy Permitted?
Yes, altruistic surrogacy is permitted in South Dakota. Even if you have a surrogate, you may still choose to partner with a surrogacy agency to navigate your journey.
Are there any residency requirements for either Intended Parent(s) or surrogates in South Dakota?
Generally no. Intended parents do not need to be South Dakota residents to carry out a surrogacy journey in South Dakota. Similarly, gestational carriers are not required to reside in South Dakota. However it is best practice to have one of the parties reside in the state or have the baby born in South Dakota to have sufficient jurisdiction.
Are there any written laws (statute or case law) relating to the rights of gestational carriers?
South Dakota does not have any written laws pertaining to the rights of gestational carriers. Learn more about surrogate rights.
Legal Surrogacy Terms You Should Know
Surrogacy
Surrogacy is a modern and growing means of bringing new life into the world, where a woman carries a baby for another person or a couple. The intended parents typically undergo IVF meaning fertilization outside of the body, to transfer their embryo into the surrogate's uterus. Learn more about American Society of Reproductive Medicine (ASRM) surrogacy recommendations.
Gestational Surrogacy
Gestational surrogacy is the most common surrogacy practiced today. The surrogate is not genetically or legally related to the baby and is usually compensated for her time and service by the intended parents. Most surrogacy agencies exclusively practice gestational surrogacy. Learn more about What Is A Surrogate?.
Traditional Surrogacy
A traditional surrogate uses her own egg meaning she is biologically related to the child, while a gestational carrier is not genetically related. This typically means the embryo is created through IVF with the surrogate's eggs and Intended Father’s or donor’s sperm. In lieu of IVF, parties could also perform Intrauterine Insemination ("IUI") with the Intended Father’s or donor’s sperm. This is not common in modern family building and rarely practiced today. Learn more about the differences between gestational surrogacy and traditional surrogacy.
Altruistic Surrogacy
Altruistic surrogacy, sometimes referred to as compassionate surrogacy, is when the surrogate is not financially compensated beyond reimbursement of medical and other pregnancy-related expenses for carrying a child. Many times this is when a friend or relative is the surrogate.
Intended Parent(s)
The intended parent or parents is the individual or a couple who partner with a surrogate to carry and give birth to a child on the intended parent’s behalf. There are many reasons people choose surrogacy to make their dream of a family come true including infertility, medical reasons, and non-medical reasons.
Gestational Surrogate
A gestational surrogate is a woman who carries a child for someone who cannot. The surrogate mother undergoes IVF to have an embryo that has no genetic relation to her transferred and she carries the baby to term for the Intended Parent(s). The embryo can be created by both the parents’ egg and sperm or with an egg donor and/or a sperm donor. In modern surrogacy with a gestational surrogate, her egg is not used. South Dakota is a surrogacy friendly state. Learn more about becoming a surrogate in South Dakota.
Compensation
Gestational carrier compensation can include medical, legal, and living expenses. Learn more about surrogate pay.
Gestational Carrier Agreement or Surrogacy Agreement
A Gestational Carrier Agreement (GCA) or Surrogacy Agreement is a comprehensive, written contract between Intended Parents, the surrogate, and the surrogate’s partner/spouse, if any.
The GCA outlines legal rights, expectations, responsibilities, compensation, and other potential contingencies. This agreement happens before the embryo transfer and details the parties' rights, obligations, intentions, and expectations to each other in connection with the surrogacy process. It also addresses many other aspects of the relationship and journey including medical considerations, location of delivery, future contact between the parties, insurance (both health and life), payment of medical bills, liability for medical complications, and Intended Parents' presence during doctor's visits and at delivery.
Financial considerations such as the surrogate’s compensation and expenses, including everything from lost wages, legal fees, invasive procedure fees, and medical fees to childcare costs and maternity clothes are also addressed. Legal counsel will ensure you have a properly executed surrogacy agreement, customized to your unique circumstances and the legal requirements of the state where your surrogate resides.
Clinic Consent Form
Many fertility centers have standardized forms for patients to complete as part of the informed consent process. However, these forms are consents between the Intended Parents and fertility center and between the donors and the fertility center; a legal contract between the Intended Parents and donors is still needed, and both Intended Parents and donors should have separate independent legal representation. Fertility center consent forms do not take into account the nuances of parentage and donor laws in each state. The forms often go beyond the concepts of procedures, benefits, and risks and reach into issues of establishment and relinquishment of parental rights. Such boilerplate provisions in consent often cannot resolve legal parentage, especially when neither party has separate independent legal representation.
Navigating South Dakota surrogacy laws requires careful consideration and legal expertise. By staying informed and working with experienced professionals, you can embark on a surrogacy journey with confidence and legal security.
For personalized legal advice and assistance, consult with a reputable reproductive law attorney in South Dakota.
DISCLAIMER: The information in this blog does not constitute legal advice and should not be construed as such. The information contained is strictly for informational purposes only. ConceiveAbilities does not represent or warrant the content to be error-free.