South Carolina surrogacy laws & gestational process guidelines

Is Gestational Surrogacy Legal in South Carolina?

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.

Is Traditional Surrogacy Legal in South Carolina?

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.

Is Compensated Surrogacy Legal in South Carolina?

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:

• Mock cycle compensation
• Embryo transfer compensation
• Starting medication compensation
• Monthly allowance for miscellaneous expenses
• Monthly Housekeeping budget
• Maternity clothing budget
• Medical expenses
• Travel to and from clinic/hospital
• Lost wages if applicable
• Child care if bed rest is required
• Term life insurance
• Medical insurance
• Independent legal counsel
• Psychological counseling
• Other depending on agency

Creating a South Carolina Surrogacy Contract

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:

• The rights and responsibilities of each party
• Any potential risks and liabilities, and the steps to take should they occur
• Surrogate compensation and other financial information, like surrogacy insurance
• Agreements on sensitive issues like selective reduction and termination
• Contact expectations
• And more

Once the contract has been finalized and signed by both parties, the medical process of surrogacy can begin.

Determining Legal Parentage in South Carolina

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.