What You Need to Know About Surrogacy in South Dakota

What You Need to Know About Surrogacy in South Dakota

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South Dakota Surrogacy Laws

While surrogacy in South Dakota may seem complicated due to the lack of surrogacy laws and remote location of the state, this family-building process is actually a safe and legal one for intended parents and surrogates considering this path. As long as you work with an experienced South Dakota surrogacy professional from the beginning of your journey, you can reach your surrogacy goals safely and successfully.

But, which professionals do you need to work with? Every intended parent and surrogate should contact a local South Dakota surrogacy attorney for legal guidance on current South Dakota surrogacy laws and the impact on their circumstances. Only an attorney can give the best legal advice for your situation.

However, in the meantime, you can learn some of the basics about South Dakota surrogacy laws below.

Q: Is surrogacy legal in South Dakota?

A: Surrogacy is legal in South Dakota, although there are currently no state laws governing the process. However, like most states without surrogacy laws, South Dakota has a set of steps created by professionals that intended parents and surrogates can take to proceed safely and legally with this family-building path.

Q: Is compensated surrogacy legal in South Dakota?

A: Yes, as there are no surrogacy laws in South Dakota regulating or prohibiting a surrogate’s right to receive base compensation for her services.

Q: Is traditional surrogacy legal in South Dakota?

A: Yes. There are no surrogacy laws in South Dakota prohibiting the practice of traditional surrogacy, although this process will always come with potential legal and emotional risks.

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

A: A South Dakota surrogacy agreement is designed to protect the rights and interests of each party in the absence of defined South Dakota surrogacy laws. Therefore, intended parents and their surrogate must be represented by separate South Dakota surrogacy attorneys during this legal process.

These attorneys will negotiate a legal surrogacy contract that addresses the goals and expectations of intended parents and surrogate, including aspects like:

  • Rights and responsibilities
  • Potential risks and complications
  • Surrogate compensation and other financial information
  • How the intended parents will establish their parental rights
  • Agreements on sensitive issues like selective reduction and termination
  • And more

Once both parties agree that the contract is to their expectations, they can sign it and begin the medical process of surrogacy in South Dakota.

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

A: Because surrogacy contracts are neither permitted nor authorized with any South Dakota surrogacy laws, the answer to this is unclear. Please speak with a local surrogacy attorney for more guidance on this matter.

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

A: Generally speaking, the courts are favorable in granting pre-birth parentage orders to intended parents. These orders can even be issued in situations where couples of intended parents (married or unmarried) and single parents have no genetic relationship to the babies being born via surrogacy.

However, because surrogacy in South Dakota is rare, it’s important to speak with an experienced surrogacy attorney for the best legal advice on whether a parentage order will be available in your situation.

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

A: No. There are no surrogacy laws in South Dakota that specifically apply to international intended parents.

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

A: Typically, an adoption will not be needed in a South Dakota surrogacy, as pre-birth parentage orders are readily granted. Intended parents who complete a surrogacy in another state may need to complete an adoption there to establish their parental rights. Completing an adoption in South Dakota after the birth of the child is a complicated process (see below).

Q: Does South Dakota allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?

A: South Dakota does allow any adult to adopt, married or unmarried, so second-parent adoptions are available.

However, a child must live in the home of the adopting parent for at least six months prior to the filing of the adoption petition, making the use of any adoption after birth in a South Dakota surrogacy a practically ineffective one (and the reason why surrogacy courts in this state readily grant parentage orders instead).

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

A: The use of a donor gamete in a surrogacy in South Dakota often has no impact on the ability of intended parents to obtain a parentage order. While there are no state laws addressing the rights of egg, sperm and embryo donors, anonymous donors will have their rights terminated upon donation to a gamete bank, and known donors should work with an assisted reproduction attorney to ensure the proper legal steps are taken.

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

A: No. There are no surrogacy laws in South Dakota that specifically address LGBT intended parents.

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Once you understand the current state of surrogacy in South Dakota and know it’s the right path for you, you’ll want to find additional surrogacy professionals. If you’re looking for a full-service surrogacy agency that will guide you through every step of this life-changing journey, American Surrogacy can help.

Our surrogacy specialists welcome intended parents and surrogates in South Dakota, and we can help you find a surrogacy partner within your state or another surrogacy-friendly state in the U.S. We will also provide the case management and support services you need to reach your personal surrogacy goals.

To learn more about how our surrogacy agency can help you in your South Dakota surrogacy, please call our specialists at 1-800-875-2229(BABY).

This article is not intended to be and should not be taken as legal advice. Surrogacy laws in South Dakota are always subject to change, so please contact a local surrogacy attorney for more information on the current state of surrogacy in South Dakota.