State-by-State Surrogacy Laws: Surrogacy in South Dakota
Although gestational surrogacy has been practiced for over 30 years (the first gestational carrier was implanted in 1985!), the law is still catching up to advances in Assisted Reproduction. South Dakota, like many other states, still does not have surrogacy-specific laws in the books. This doesn’t mean surrogacy in South Dakota is ill advised or not sanctioned. Quite the opposite – surrogacy professionals (Reproductive Endocrinologists and Assisted Reproduction attorneys) in the state have created a reliable framework incorporating the many ethical and practical considerations into protocols designed to protect the rights of all involved.
As there are no laws that address surrogacy in South Dakota, there’s also an absence of regulations regarding legal contracts covering surrogacy. Nevertheless, these agreements are presumed to be enforceable under general contract law guidelines. It’s always best to discuss specifics regarding surrogacy with an attorney. Attorneys that specialize in Assisted Reproduction are most qualified to answer your questions and protect your legal rights in drafting and finalizing surrogacy agreements.
If you are just starting to learn about surrogacy, you’ll need to keep a lot of things in mind. A qualified attorney can assist you to make sure you’re making the best decisions for yourself and your family. Nothing presented in Surrogacy Place’s blog should replace advice you receive from a qualified professional. If you’re looking for an attorney, a good place to start can be our own attorney directory. Find attorneys across the country in our directory.
While South Dakota doesn’t have laws that speak to surrogacy arrangements, that shouldn’t be concerning as you decide to undergo a journey in the Mount Rushmore State. While there’s no surrogacy-specific regulations, there aren’t restrictions on its practice either. Surrogacy in South Dakota is an option for anyone that knows they need surrogacy for family building as well as for women that wish to become surrogates.
Surrogacy starts with a consultation with a Reproductive Endocrinologist (if you’re an Intended Parents) and with a qualified attorney (for all parties). If you need recommendations on surrogacy-experienced attorneys that practice law in particular states, Surrogacy Place has an attorney directory listing professionals that have experience handling surrogacy cases.
As you ponder whether surrogacy is right for you (including whether you are looking for traditional or gestational surrogacy), make sure you understand how you plan to handle unexpected pregnancy complications. In South Dakota, abortion is banned in nearly all instances unless a pregnancy woman is in immediate danger of death. Intended Parents and surrogates in South Dakota need to have an honest conversation before proceeding so everyone is in agreement about what to do if emergency pregnancy complications arise, including how emergency care may be accessed, including a travel plan if necessary to prevent disability or worse.
Is gestational and traditional surrogacy legal in South Dakota?
Yes – both gestational and traditional surrogacy are practiced in South Dakota and there are no restrictions on compensation for either category. While there aren’t specific surrogacy laws in SD, professionals licensed in the state have created protocols based on best practices learned from decades of commercial surrogacy. An attorney can talk to you about what those requirements are and what might be best for you and your family.
Can South Dakota residents do surrogacy without a surrogacy agency?
Yes. There are no states where an agency is a requirement or even necessary to ensure a successful outcome. Agencies can helpful depending on your inclinations, but they are a preferred style vs. a necessity. Many surrogates and Intended Parents have strong preferences in not having an agency-managed experience as discussed in detail below.
Who can become an Intended Parent in South Dakota?
South Dakota does not discriminate based on marital status, sexual orientation, whether partnered or individual. Anyone that has a reason (physical or mental) for not being able to carry their own child(ren) is eligible in the state.
Pre-birth orders are highly available regardless of individual circumstance including whether or not you are partly or fully biologically related to the child(ren) born from surrogacy. The absence of surrogacy restrictions coupled with the ease of obtaining pre-birth orders makes South Dakota on the list of “surrogacy-friendly” states, though restrictions on access to Reproductive healthcare temper that designation a bit.
Being presumed qualified goes many steps beyond being comfortable with being pregnant. Surrogacy Place developed a short quiz to help you determine if you might have what it takes to become a potential surrogate.
If you are interested in becoming a surrogate, there are many requirements you need to meet, including:
- You have directly experienced pregnancy and childbirth with your own kid(s) and those kid(s) are either fully grown or you have current custody of them.
- Your health is excellent, including your mental health. You do not take prescription medications that are contradictory for pregnancy. Surrogates must never go off of necessary medications to undergo a surrogacy journey.
- You do not use or abuse alcohol, tobacco, or drugs.
- You are self-sufficient and have strong financial support. You are not dependent on surrogacy income to pay your bills.
- You lack a history of complications during pregnancy including placental abruption, gestational diabetes, postpartum depression, etc.
- You are between 21-42 in age, though exact age requirements are determined by circumstances and IVF clinic.
- You can responsibly take medications, including hormone injections, as prescribed.
- You know what it takes and the reasons you want to be a surrogate and they go beyond the financial upside.
If you are qualified based on an honest assessment of the above, you may be ready for the exciting next step of matching with Intended Parents. As you begin rounds of interviewing potential candidates, know what you’re looking for ahead of time so that you won’t find yourself compromising on things you wished you had considered.
After you find your presumed journey partner (be sure you interview several candidates to know what you’re looking for!), you’ll go through the medical evaluation phase followed by the Intended Parent’s attorney drafting a formal contract. In all circumstances, surrogates must choose their own attorney while the Intended Parent(s) will cover her legal costs. If everyone agrees with weigh in from both attorneys, contracts will be signed. You’re now ready for embryo implantation and hopefully a pregnancy will result soon after!
Reasons why independent journeys are gaining in popularity with surrogates.
You can match without an agency
Are you planning to self-manage your surrogacy journey and go indy? Surrogacy Place can help! Our platform facilitates direct connections between surrogates and Intended Parents. If you have specific things you’re looking for in a journey partner, you can search our database to find potential matches that fit your standards. You can also narrow your search by location e.g. if you want to find surrogates in your home state or the surrounding areas. Being able to consider a variety of candidates can help you feel confident. Once you match, be sure to do your own due diligence with help from your attorney.
Surrogates can join Surrogacy Place without paying a dime, Intended Parents must pay a small access fee to use most of the site’s features. If you’re interested in creating an account, head over to our sign-up page.
Why are more and more people doing independent surrogacy journeys?
Independent journeys tend to appeal to Intended Parents initially because of the tremendous cost savings. In most cases, this mean savings of tens of thousands of dollars, sometimes even exceeding one hundred thousand dollars! Intended Parents saving on agency fees can also benefit a surrogate as some surrogates successfully negotiate a higher base compensation by not being limited to an agency’s pricing rate card. Many Intended Parents are happy to offer a surrogate more when they know they don’t have to budget for agency fees.
Self-managed surrogacy also provides both parties the opportunity to meet a wider pool of potential candidates. Unlike agencies, which may rush matches to meet their financial targets and/or withhold important information, independent arrangements allow for each side to directly communicate and do their own due dilligence. This is a great opportunity to discuss medical and personal histories. Remember, only medical and legal professionals can clear parties for a surrogacy arrangements. Agencies cannot warrant the folks they represent are suitable for surrogacy and their engagement agreements say as much.
Many surrogates, especially those that have prior surrogacy experience, prefer doing an independent journey. Read about the reasons indy journeys are an increasingly popular choice.
Intended Parents – wondering how much to budget for surrogacy? We have a cost-breakdown guide to help.
Looking for information about surrogacy in commercial-surrogacy permitted states? We now have a surrogacy by state resources hub.