GESTATIONAL SURROGACY LAW SOUTH DAKOTA
There are no statutes or published case law specifically permitting or prohibiting surrogacy in South Dakota; therefore, it is considered legal.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in South Dakota, 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 Dakota.
Is Gestational Surrogacy Legal in South Dakota?
Yes. Gestational surrogacy is permitted in South Dakota because there are no state laws or published cases that prohibit it.
Is Traditional Surrogacy Legal in South Dakota?
Yes. There are no surrogacy laws in South Dakota prohibiting the practice of traditional surrogacy so it is considered legal.
Is Compensated Surrogacy Legal in South Dakota?
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:
- 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 Dakota Surrogacy Contract
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:
- 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 Dakota
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.
Same-Sex Surrogacy in South Dakota
Q: Is Same-Sex Surrogacy Legal in South Dakota?
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 Dakota?
A: No. There are no additional laws impacting same-sex parents in this state.
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: The use of a donor egg, sperm, or embryo, in most cases, has no impact on the ability of intended parents to obtain a parentage order. However, South Dakota does not currently have a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo, or child so it is important to work with an experienced surrogate attorney to ensure your parental rights are established in these situations.
REPRODUCTIVE LAW PRACTITIONERS
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