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STATE SURROGACY LAW:

South Dakota Surrogacy Laws

Overview

There is no South Dakota case law or state statute that prohibits Intended Parent(s) from pursuing either gestational surrogacy or traditional surrogacy.

Types of Surrogacy Available in South Dakota

Can a parentage order be obtained for the following?

Although traditional surrogacy isn’t prohibited in South Dakota, many attorneys and agencies advise against it due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

YES

Altruistic surrogacy

YES

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.

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

Intended Parent(s) may be listed as Parent-Parent.

Rights of Egg or Sperm Donor(s)

There are no statutes or case law in South Dakota that address the rights of an egg, sperm, or embryo donor over the donated gametes or a resulting child.

Surrogacy Steps in South Dakota

Surrogacy Process in South Dakota

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 and birth certificate finalization

Birth Certificate Timeline

Birth certificate

4-6 business days

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 there’s no statute or case law addressing surrogacy contracts, gestational surrogacy contracts in South Dakota have been routinely recognized and enforced by the state. It is less certain if traditional surrogacy contracts would be enforced given the genetic connection between the surrogate and the child, although there is no case law to refer to.

Independent Counsel

Independent counsel is strongly recommended, but not required, for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

South Dakota 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?

NO

Bases of Venue

What are the bases of venue?

None

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

N/A

International Issues

Because of the lack of legal restrictions, International intended Parent(s) may find doing surrogacy in South Dakota a relatively straightforward process. 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 South Dakota have any residency requirements for out-of-state or International Intended Parents?

NO

Birth Certificates

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

YES

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

YES

Adoption is required for an international same-sex couple to receive a birth certificate with only the Intended Parent(s) names on it.

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

Kenneth Tschetter
Tschetter & Adams
919 S. Remington Place Suite 100
Sioux Falls, SD 57108
(605) 367-1013
tschetteradams.com

Emily Gehling
Dakota Surrogacy
101 S Reid St #307
Sioux Falls, SD 57103
(605) 937-8920
egehling@dakotasurrogacy.com
www.dakotasurrogacy.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 October 2019

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