GESTATIONAL SURROGACY LAW SOUTH CAROLINA
Gestational Surrogacy is permitted in South Carolina because no statute or published case law prohibits it and is becoming a common way for people to build families in this state.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in South Carolina, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in South Carolina.
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.
Same-Sex Surrogacy in South Carolina
Q: Is Same-Sex Surrogacy Legal in South Carolina?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in South Carolina?
A: No. There are no additional laws impacting same-sex surrogacy in South Carolina. However, an adoption post-birth is necessary in cases of same-sex surrogacy where both parents’ names cannot be placed on the birth certificate, even when one parent is biologically related to the child.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable 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.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in South Carolina?
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.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: Any intended parents who complete a traditional surrogacy will need to complete an adoption after their child is born. An adoption is also necessary in cases of same-sex surrogacy where both parents’ names cannot be placed on the birth certificate, even when one parent is biologically related to the child.
Depending on the intended parents’ marital status, they will need to complete a stepparent adoption or a second-parent adoption.
Q: Does South Carolina 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; second-parent adoptions allow two unmarried intended parents to both have parental rights over a child.
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 Carolina, there is no published case law that addresses the rights of a donor in a sperm, egg, or embryo donation. In these situations, it is important to work with an experienced surrogate attorney to ensure your parental rights are established.
REPRODUCTIVE LAW PRACTITIONERS
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