What You Need to Know About Surrogacy in South Carolina

What You Need to Know About Surrogacy in South Carolina

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South Carolina Surrogacy Laws and Information

If you’re considering surrogacy in South Carolina, you may be concerned to discover that there are no South Carolina surrogacy laws. However, just because there are no laws on surrogacy in South Carolina doesn’t mean this family-building process isn’t a possibility for you. On the contrary, surrogacy in South Carolina is a safe and legal process for both intended parents and prospective surrogates.

As with many states that have no surrogacy laws, it’s important that you work with an experienced surrogacy professional from the start in this state. This means locating a surrogacy attorney in South Carolina, as well as a surrogacy agency and fertility clinic experienced in the process of surrogacy in South Carolina, to ensure that all of the proper legal and practical steps are followed during your surrogacy journey. Only then can you make your parenthood or surrogate dreams come true.

To learn more about surrogacy laws in South Carolina, check out some answers to the most commonly asked questions below. To learn more about how American Surrogacy can help you complete your South Carolina surrogacy process, please contact our surrogacy professionals at 1-800-875-2229(BABY).

Q: Is surrogacy legal in South Carolina?

A: While there are no surrogacy laws in South Carolina, the courts are generally favorable to intended parents and surrogates who pursue this family-building path in this state. In fact, there is actually published case law suggesting South Carolina surrogacy is valid.

In the case of Mid-South Ins. Co v. Doe, the U.S. District Court for Charleston examined a gestational carrier agreement to determine intent of the parties involved in a surrogacy, implying that it was indeed a valid agreement. Therefore, surrogacy agreements are assumed to be valid in South Carolina.

However, like in most states, how surrogacy is handled in South Carolina will vary by the county and judge overseeing the particular surrogacy case. Speak with a South Carolina surrogacy attorney for more information about what your individual surrogacy situation may look like.

Q: Is compensated surrogacy legal in South Carolina?

A: Yes. Gestational surrogacy laws in South Carolina do not place restrictions on any compensation provided to the surrogate.

Q: Is traditional surrogacy legal in South Carolina?

A: 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. Therefore, any compensation beyond the living expenses allowed in the South Carolina adoption statute is illegal.

Q: What does a surrogacy agreement in South Carolina cover, and how does the legal process work?

A: The legal process of drafting a surrogacy contract in South Carolina is the same as in many other states. Each party must be represented by their own surrogacy attorney to ensure that their rights and interests are protected during this crucial legal step.

The surrogacy contract will cover:

  • Surrogate compensation
  • Risks and liabilities to both parties
  • Expectations from both parties before, during and after the surrogacy process
  • Sensitive issues, like termination and selective reduction
  • Parentage orders

After each party’s needs and desires have been met, the surrogacy contract will be complete and the medical process of surrogacy can begin.

Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in South Carolina?

A: Surrogacy contracts are enforceable in South Carolina, thanks to the aforementioned case of Mid-South Ins. Co. vs Doe, which upheld the validity of surrogacy contracts in this state.

Q: What are the surrogacy laws in South Carolina on parentage orders?

A: Again, while each surrogacy will be different based on the situations of every party involved, the courts are generally inclined to grant pre-birth parentage orders to intended parents, regardless of their marital status or genetic relationship to the baby. Of course, this will depend upon the county and the judge applicable to the intended parents’ case.

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 you as an intended parent to ensure proper parental rights are bestowed. 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.

Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in South Carolina?

A: Besides the typical legal processes involved with obtaining a visa and immigration papers after a baby is born via surrogacy to international parents, there are no additional laws regarding international surrogacy in South Carolina.

Q: When do intended parents need to complete an adoption after birth? 

A: As mentioned, 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.  Only a South Carolina surrogacy attorney can determine which path is best for you and assist you through the necessary legal steps.

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 legal in South Carolina. Like in any other state, a second-parent adoption in South Carolina allows two unmarried intended parents to both have parental rights over a child.

If the non-genetically related parent in a surrogacy is married to the genetically related intended parent, this process can be expedited with a stepparent adoption, instead. However, if two intended parents are not married, a second-parent adoption is the best way to establish their parental rights.

Q: What happens in cases where intended parents use a donor egg, sperm or embryo?

A: The legal steps of using a donated gamete will depend upon whether the donation is achieved through an agency, a fertility clinic, or on the intended parents’ own. If intended parents work with an agency or a fertility clinic to find a donor, they will usually only need to complete a detailed consent document with the clinic. If the donation is anonymous, there will be no need to legally terminate the donor’s rights.

However, if intended parents and a donor contact each other directly, they may need to enter into a “donation contract.” This must be drafted by a surrogacy attorney in order to properly address all legal aspects of the gamete donation. The attorney will also work with the intended parents to terminate the donor’s right and establish the non-genetically related parent’s (or parents’) parental rights.

In South Carolina, there is no published case law that addresses the rights of a donor in a sperm, egg or embryo donation. Instead, the legal process is handled by experienced assisted reproductive technology attorneys.

Q: Are there any additional laws impacting same-sex surrogacy in South Carolina?

A: Even if a same-sex couple does not live in South Carolina, they can still take advantage of a second-parent adoption if their child is born to a surrogate in South Carolina. We encourage all intended parents pursuing same-sex surrogacy to speak with an experienced South Carolina surrogacy attorney to learn more about how their individual situation may impact their surrogacy journey.

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As you can see, even though there are no surrogacy laws in South Carolina, surrogacy professionals and assisted reproductive technology attorneys have created a clear legal and practical process for intended parents and surrogates to make their surrogacy dreams come true. With the assistance of an experienced surrogacy professional, you can achieve your surrogacy goals, too.

Here at American Surrogacy, we are happy to work with both intended parents and surrogates from South Carolina. To learn more about the services we can offer you as you embark on this life-changing journey, please contact our professionals today at 1-800-875-2229(BABY).

Although we’ve made every effort to provide you updated information on surrogacy in South Carolina, remember that laws and restrictions are always subject to change. This information is not intended to be used as legal advice; please contact a local South Carolina surrogacy attorney to learn more about the current state of surrogacy in South Carolina.