GESTATIONAL SURROGACY LAW SOUTH DAKOTA

Below is a list of some of the most frequently asked questions about surrogacy in South Dakota:

Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable 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.

Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in South Dakota?

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.

Q: When do Intended Parents Need to Complete an Adoption After Birth?

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.

Q: Does South Dakota Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?

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.

Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?

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.