STATE SURROGACY LAW:

South Carolina Surrogacy Laws

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Overview

There is no South Carolina statute or case law prohibiting the practice of gestational surrogacy. Surrogacy practice in South Carolina is upheld by published case law from 2003 when a U.S. District Court upheld the validity of a South Carolina gestational carrier agreement (Mid-S. Ins. Co. v. Doe (D.S.C. 2003).

South Carolina surrogacy practice is also supported by the holding in In re: Baby Doe, which used intent-based parenting to establish parentage in a divorce case where the father was not genetically connected to his child. No statute or case law prohibits traditional surrogacy, either, but this surrogacy path is treated like adoption in South Carolina and thus faces strict limitations on compensation (S.C. Code § 63-9-310 (F) (1)).

Types of Surrogacy Available in South Carolina

Can a parentage order be granted for the following?

Gestational surrogacy

YES

Altruistic surrogacy

YES

Traditional surrogacy

NO – Although traditional surrogacy is not prohibited in South Carolina, but parentage is established through adoption proceedings rather than a court parentage order. Moreover, compensation for traditional surrogacy services is limited to medical and reasonable living expenses. Most attorneys and agencies strongly advise against the practice given the increased emotional and legal risks involved.

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

– Both Intended Parent(s) can be named on the parentage order.

– Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

In cases of same-sex couples, both parents can be listed if the parties are married. If partnered, not married, only the genetic parent can be named on the birth certificate by parentage order. The non-genetic parent can establish parental rights via a second parent adoption after birth.

If neither Intended Parent has a genetic connection, pre-birth parentage can be established if evidence of pre-conception intent to parent exists (i.e. preconception agreement, surrogate agreement, embryo donation agreement, etc.)

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father or Mother, Father and Father, Mother and Mother, or Parent 1 and Parent 2.

Rights of Egg or Sperm Donor(s)

There are no statutes or case law in South Carolina that address the rights of an egg, sperm, or embryo donor over the donated gametes or a resulting child. Therefore, parental rights can only be effectively terminated through a court order.

Surrogacy Steps in South Carolina

Surrogacy Process in South Carolina

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations at the fertility center

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Pre-birth order

Proceedings begin after the first trimester

Delivery

Post-birth order

A post birth order is required to receive a corrected birth certificate

Birth Certificate Timeline

Birth certificate

If applying in person, applicants will receive same-day service. If mailing the package, the process takes 4-6 weeks to receive the birth certificate and copies. Parties cannot use the online request service as the legal department is located at Vital Records headquarters in Columbia, SC, and must approve all ART related birth amendments.

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

Although no statutes directly regulate the matter, surrogacy contracts in South Carolina are recognized and enforced by the state.

Independent Counsel

Independent counsel is required for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

South Carolina has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys.

Birth Orders

Do courts issue pre-birth orders?

YES

Do courts issue post-birth orders?

YES

Are hearings required to obtain either pre- or post-birth orders?

DEPENDS

Courts typically grant pre-birth orders, but results may vary by county and by judge. Pre-birth orders may take up to 6-8 weeks to be issued. It is also necessary to file a post-birth order to affirm parentage. Pre-birth orders may or may not require hearings, depending on the county where the motion is filed; Post-birth order hearing requirements may also vary between in person and video hearing. Regardless, all parties and their legal counsel must participate.

Bases of Venue

What are the bases of venue?

County where Intended Parents live; County where Gestational Carrier lives; county of IVF clinic; county of gestational carrier’s OB/GYN; county where child is born.

Do rulings vary by venue?

Yes – Procedural rules vary by county.

Can you file a motion to waive venue?

YES

International Issues

International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.

Residency Requirements

Does the state impose residency requirements on either the surrogate or Intended Parent(s):

Yes – At least one party must be a resident of SC.

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

YES

Can an international same-sex male couple obtain an initial birth certificate naming only the biological father?

YES

Can they receive a subsequent birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES, if the Intended Parents are married.

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Stephanie Brinkley
Brinkley Law Firm LLC
1 Carriage Lane
Building F, Suite 100
Charleston, SC 29407
(843) 277-9009
sbrinkley@brinkleylawfirmllc.com
www.brinkleylawfirmllc.com

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated March 2024