South Dakota

Understanding Surrogacy Laws in South Dakota
Parentage is established in South Dakota via pre-birth declaratory judgments of parentage regardless of marital status, sexual orientation, or genetic relationship to the child.

Legal Parentage
Backing up a step, the legal parentage process is the critical step where parentage is determined. Depending on where your child is born, the birth parentage orders will be completed either pre- or post-birth. Every state, whether pre-birth, post-birth, or some combination of the two, has its own unique process and requirements. Working with an experienced Assisted Reproductive Technology lawyer and reputable agency is critical to the success of a surrogacy journey.

Pre-Birth Orders
The pre-birth process means that the relevant state law provides an avenue for the parties to present an order to a judge for entry prior to the child being born that establishes the intended parent(s) as the legal parents of the child. It will also likely direct the hospital to release the child to the intended parents after discharge and order the South Dakota Office of Vital Records to name the intended parents on the child’s birth certificate.

Post-Birth Processes
The post-birth process is overall procedurally the same as the pre-birth, but it occurs after the child is born. Often this is because the relevant state law contemplates the existence of a live child before anything can be filed or entered. But the ultimate result is the same – a birth certificate with the intended parents’ names and secure legal parentage of the child in favor of the intended parents. Post-birth court orders may be necessary if the pre-birth order process isn’t followed, ensuring legal parentage.

Common Questions About South Dakota Surrogacy Law
Do You Need a Medical Need for Surrogacy in South Dakota?
Although there is no specific law on this, it is currently best practice to only pursue surrogacy in South Dakota if you have a medical need, which means surrogacy is only permitted if there is a medical reason a person cannot carry their own child. Some examples of medical needs include unexplained infertility, lack of a uterus or vagina, scarring on the uterus, and a history of complicated pregnancies or miscarriage(s). Existing medical conditions like heart disease, kidney disease, diabetes and pregnancy conditions such as preeclampsia and gestational diabetes that could impact a woman’s ability to carry a child to term or put her life at risk would also qualify as a medical need. Maine does require intended parents to undergo a medical evaluation.

Are There Any Requirements or Specifications for Intended Parent(s) as It Relates to Marital Status?
South Dakota permits married couples, partners, and single individuals to pursue surrogacy, regardless of marital status.

Do Intended Parent(s) need a genetic connection to the embryo?
In South Dakota, intended parents do not need a genetic connection to the embryo.

Can International Intended Parent(s) Pursue Surrogacy in South Dakota?
International parents can pursue surrogacy in South Dakota. Learn more about becoming a parent with international family building.

Can LGBTQIA+ Intended Parents safely pursue surrogacy in your state?
Yes, South Dakota allows surrogacy for all individuals including the gay and LGBTQ+ community, regardless of sexual orientation. However, how parentage is established may vary. Learn more about surrogacy and the LGBTQ+ Community.

Can I Use My Own Surrogate? Is Altruistic Surrogacy Permitted?
Yes, altruistic surrogacy is permitted in South Dakota. Even if you have a surrogate, you may still choose to partner with a surrogacy agency to navigate your journey.

Are there any residency requirements for either Intended Parent(s) or surrogates in South Dakota?
Generally no. Intended parents do not need to be South Dakota residents to carry out a surrogacy journey in South Dakota. Similarly, gestational carriers are not required to reside in South Dakota. However it is best practice to have one of the parties reside in the state or have the baby born in South Dakota to have sufficient jurisdiction.

Are there any written laws (statute or case law) relating to the rights of gestational carriers?
South Dakota does not have any written laws pertaining to the rights of gestational carriers.