Yes. Gestational surrogacy is permitted in South Dakota because there are no state laws or published cases that prohibit it.
Yes. There are no surrogacy laws in South Dakota prohibiting the practice of traditional surrogacy so it is considered legal.
Yes. There are no laws placing 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 Dakota, 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 typically be obtained by any intended parent, regardless of marital status, sexual orientation, or genetic relationship to the child born via surrogacy. Post-birth adoptions are also available.
Below is a list of some of the most frequently asked questions about surrogacy in South Dakota:
A: This is unclear; South Dakota does not have a statutory rule on this. However, since a surrogacy contract is like any other legal contract, it is presumed that the contract would be enforceable. It is important to work with an experienced surrogate attorney to guide you through this process.
A: No. There are no particular laws in South Dakota 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.
A: Since all intended parents, regardless of marital status, sexual orientation, or genetic relation to their child born via surrogacy can usually obtain a pre-birth parentage order, an adoption, in most cases, will not be needed. However, intended parents who complete a surrogacy in another state may need to complete an adoption there to establish their parental rights.
A: Yes. Second-parent adoptions are permitted to all intended parents but are usually not necessary due to the high availability of pre-birth parentage orders. However, a child must live in the home of the adopting parent for at least six months before he/she may file for adoption making post-birth adoptions in South Dakota unhelpful for intended parents. For this reason, South Dakota courts have made parentage orders highly available when pursuing surrogacy in this state.
Stepparent adoptions are available to married couples.
A: In South Dakota, the use of donor gametes does not affect the legal parentage of intended parents as long as proper legal procedures are followed. Pre-birth parentage orders are typically still accessible, ensuring that intended parents are recognized as the legal parents from birth.
Emilee Boyle Gehling
Sioux Falls, SD
Emilee@goosemannlaw.com
(712) 226-4000
www.goosemannlaw.com
Nicole Laughlin
Sioux Falls, SD
contact@nicolelaughlinlaw.com
(605) 271-7113
www.nicolelaughlinlaw.com
Kenneth Tschetter
Sioux Falls, SD
kenmtschetter@gmail.com
(605) 367-1013
