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GESTATIONAL SURROGACY IN SOUTH CAROLINA

Gestational Surrogacy is permitted in South Carolina because no statute or published case law prohibits it. To the contrary, there is published case law that suggests that surrogacy is valid.  Specifically, in Mid-South Ins. Co. v. Doe, the U.S. District Court and looked to a Gestational Carrier Agreement to determine the intent of the parties, implying it was a valid agreement.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes, but results may vary by county and by judge. Under South Carolina law, the mother who gives birth was traditionally presumed to be the “natural mother” of the child, and therefore the legal mother; if she is married, her husband was presumed to be the legal father.  Nevertheless, the courts have evolved on gestational surrogacy and grant pre-birth orders in the majority of cases.


Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes
  • Same-sex couple using an egg donor or sperm donor: No, only the biological parent can obtain a pre-birth order, thereby triggering a 2-step court process. The non-biological parent must then obtain a second parent adoption, which can be accomplished right in South Carolina.  The birth certificate will then be amended.
  • Single parent using own egg or sperm: Yes

 
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

  • Married heterosexual couple: Yes
  • Unmarried heterosexual couple: Yes
  • Same-sex couple: Unclear
  • Single parent: Yes, but the court may not granted the order until the child is born.


What are the bases for venue?  County of the Gestational Carrier’s residence, county of the IVF clinic, county of the Gestational Carrier’s OB/GYN, county of the child’s birthplace.
 
Do results vary by venue?  Sometimes
 
If yes, are motions to waive venue accepted?  Yes
 
Is a hearing required to obtain a pre-birth order?  No
 
Is a pre-birth order possible in South Carolina based on a Gestational Carrier’s plan to deliver in South Carolina, if no party lives in South Carolina?  Yes
 
Will South Carolina Vital Records honor a pre-birth order from another state?  No
 
What is the typical time frame to obtain a birth certificate after delivery?  2-4 weeks

Same-Sex Couples

How are same-sex parents named on the final birth certificate?  Mother and Father

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

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?
Yes, but initially only the biological father is named. Adding the second father requires a second parent adoption.

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in South Carolina (i.e., neither of the Intended Parents lives in South Carolina)? Yes

SECOND PARENT & STEP PARENT ADOPTIONS FOR SOUTH CAROLINA RESIDENTS

Note: This situation typically arises if the child is born outside of the state. The parents then return to South Carolina to obtain a second parent adoption or stepparent adoption in South Carolina.

Will courts in South Carolina grant second parent adoptions or stepparent adoptions to heterosexual couples living in South Carolina?  Yes
Does the couple need to be married?  No

 
Will courts in South Carolina grant second parent adoptions or stepparent adoptions to same-sex couples living in South Carolina?  Yes
Does the couple need to be married?  No

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  No

TRADITIONAL SURROGACY IN SOUTH CAROLINA

Although no statute or published case law prohibits Traditional Surrogacy, Traditional Surrogacy is treated like an adoption and, therefore, may be illegal unless payments are reasonable pursuant to the adoption statute S.C. Code Sec. 63-9-310(F)(1).

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
Jim Thompson
jamesfletcherthompson@gmail.com
(864) 573-5533
 
Stephanie Brinkley
sbrinkley@brinkleylawfirmllc.com
www.brinkleylawfirmllc.com
(843) 277-9009

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