Yes. Gestational surrogacy is permitted in South Carolina because no statute or published case law prohibits it. Mid-South Ins. Co. v. Doe, 274 F.Supp.2d 757 (2003), however, suggests gestational surrogacy contracts are permissible and enforceable.
Yes. Traditional surrogacy is legal in South Carolina but, because the surrogate is genetically related to the child she carries, it is treated as an adoption under South Carolina law. As a result, compensated traditional surrogacy arrangements may be found illegal by a South Carolina court of law if the agreement provides for compensation beyond the cost of actual medical expenses or reasonable living expenses.
Yes. Gestational surrogacy laws in South Carolina do not place restrictions on any compensation provided to the surrogate; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
Surrogacy contracts in South Carolina, and every other state, must be created by surrogate attorneys; intended parents and surrogates must work with separate surrogacy attorneys throughout the execution of the contract to ensure both parties’ interests and rights are protected.
These attorneys will negotiate a contract that addresses the following:
Once the contract has been finalized and signed by both parties, the medical process of surrogacy can begin.
Pre-birth parentage orders can be obtained by most intended parents, regardless of their marital status or genetic relationship to the child born through surrogacy; however, this will depend upon the county and the judge overseeing the case. Results may vary by county and judge in regards to pre-birth petitions filed by same-sex couples as well.
State law automatically assumes that the woman who gives birth to a child is that child’s mother, but a surrogacy attorney will work with intended parents to ensure proper parental rights are secured. Your county and court jurisdictions will determine whether this can be done through a pre- or post-birth order, or whether it has to be accomplished through an adoption after birth.
Below is a list of some of the most frequently asked questions about surrogacy in South Carolina:
A: Yes. Surrogacy contracts are enforceable in South Carolina. In Mid-South Ins. Co. v. Doe, the U.S. District Court looked to a Gestational Carrier Agreement to determine the intent of the parties and upheld the validity of surrogacy contracts in this state.
A: No. There are no additional laws in South Carolina for parents outside the United States who complete a surrogacy in this state. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Intended parents will need to complete an adoption after birth if the county or court jurisdiction requires it, or if the names of both parents cannot be placed on the birth certificate immediately — as is often the case for same-sex couples and international intended parents.
A: Yes. Surrogacy contracts are enforceable in South Carolina. In Mid-South Ins. Co. v. Doe, the U.S. District Court looked to a Gestational Carrier Agreement to determine the intent of the parties and upheld the validity of surrogacy contracts in this state.
A: No. There are no additional laws in South Carolina for parents outside the United States who complete a surrogacy in this state. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Intended parents will need to complete an adoption after birth if the county or court jurisdiction requires it, or if the names of both parents cannot be placed on the birth certificate immediately — as is often the case for same-sex couples and international intended parents.
Stephanie M. Brinkley
Charleston, SC
info@brinkleylawfirmllc.com
(843) 277-9009
www.brinkleylawfirmllc.com
Allison Bullard McNair, Esq.
Lexington, SC
allie@buildingfamiliessc.com
(803) 957-0889
www.buildingfamiliessc.com
James Fletcher Thompson
Spartanburg, SC
jim@jftlegal.com
(864) 573-5533
www.jftlegal.com
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