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South Dakota Surrogacy Law Overview

The Center for Surrogate Parenting walks you through South Dakota surrogacy law

Surrogacy is a beautiful family-building method. However, it can be complex, especially when it comes to the laws surrounding it. Thankfully, our experienced surrogacy agency is well-versed in the surrogacy laws of each state, including South Dakota surrogacy law.

As the oldest surrogacy agency in the world, we have helped U.S. and international parents to welcome healthy babies with help from U.S. surrogates. We are proud to say that we have never experienced issues with intended parents being able to bring their babies home.

To help you learn more about South Dakota surrogacy law and how to create a surrogacy contract, we’ve included some basic information below. You can also contact us for more information.

    • Is a surrogacy contract valid and enforceable?

      Surrogacy is permitted in South Dakota because there are no state laws or published cases that prohibit it.

    • Does the state have surrogacy laws and/or case law?

      There are no statutes or published case law specifically permitting or prohibiting surrogacy.

    • Are the courts typically favorable or unfavorable towards surrogacy arrangements?

      Despite the lack of statutory law and case law on the subject, South Dakota courts are typically favorable towards surrogacy arrangements.

    • Is commercial surrogacy legal?

      Commercial surrogacy is legal in South Dakota and the intended parents are permitted to compensate the surrogate for her time and expenses. Such compensation is typically arranged for in a surrogacy contract.

    • Is traditional surrogacy permitted?

      Yes. Because there are no South Dakota statutes that directly address traditional surrogacy, it is not illegal. However, although traditional surrogacy is permitted, it always carries some level of risk due to the surrogate’s genetic relationship with any resulting child.

    • Is gestational surrogacy allowed?

      Yes, gestational surrogacy contracts have consistently been found enforceable and upheld by the state. And because no South Dakota statutory law or published case law prohibits it, gestational surrogacy is an accepted practice in the state.

    • What are the requirements for an enforceable surrogacy contract?

      Since South Dakota does not have a statutory rule on this, there is not a specific set of guidelines for when a judge may uphold the validity of a surrogacy arrangement. Parties should be advised to articulate their intentions, desires, roles and responsibilities as clearly and specifically as possible in order to provide proper framework for dispute resolution should an issue arise.

      Generally, the intended parents and surrogate must have independent legal counsel and meet specific requirements. The agreement should also include provisions that discuss the legal, financial, and contractual rights, expectations, penalties and obligations of the surrogacy agreement.

    • Are pre-birth and post-birth orders permitted?

      Pre-birth parentage orders can be obtained by any intended parent, regardless of sexual orientation, marital status or genetic relationship to the child. However, it should be noted that because surrogacy is a rare practice in South Dakota, so the outcomes may vary.

    • Can both intended parents be declared the legal parents?

      Yes, both intended parents can be declared the legal parents in a pre-birth order, regardless of sexual orientation, marital status, the use of egg or sperm donation, or the genetic relationship to the child.

    • Will the state honor a pre-birth order issued by another state?

      Usually, but not necessarily in all cases.

    • What do intended parents need to know about getting the baby’s birth certificate?

      The intended parents will typically receive the birth certificate within 4-6 business days. Same-sex parents will be named as Parent-Parent.

      International gay couples can obtain an initial birth certificate that names the biological father and gestational carrier. They can subsequently obtain a birth certificate that names the biological father or both fathers only, with no mention of the gestational carrier, but only after the intended parents complete a post-birth adoption.

    • Are post-birth adoptions permitted?

      Second parent and stepparent adoptions are permitted, but they are usually unnecessary in surrogacy arrangements due to the high availability of pre-birth parentage orders in the state.

      Moreover, for any adoption, South Dakota requires that the child must live with the adopting parent for at least six months before they may file for adoption. Thereby making post-birth adoptions in South Dakota effectively unhelpful for intended parents. It is for this reason that the state’s courts have made parentage orders highly available for surrogacy arrangements.

    • Are second-parent adoptions permitted?

      Yes, and they are available to unmarried couples.

    • Are stepparent adoptions permitted?

      Yes, and they are available to married couples.

VorzimerMasserman Disclaimer: This is a summary for informational use only and should not be relied upon for legal advice. Please note that the state laws regarding surrogacy frequently change and vary from county to county. The attorneys of VorzimerMasserman are only licensed in California. VorzimerMasserman shall not be responsible for any liability associated with this list.