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, most courts will grant a Consent Temporary Order before birth. A Final Order of Parentage is then granted within 30 days of delivery.

Can both Intended Parents be declared the legal parents in the Consent Temporary Order and Final Order of Parentage 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
• Married same-sex couple using an egg donor or sperm donor: Yes
• Unmarried 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 the Consent Temporary Order and Final Order of Parentage if no parent is genetically related to the child?

• Married heterosexual couple: No
• Unmarried heterosexual couple: No
• Same-sex couple: No
• Single parent: No

What are the bases for venue?  County of the Gestational Carrier’s residence, county of the IVF clinic, county of the IVF clinic where GC receives post-transfer monitoring services, 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?  Sometimes

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?  Maybe

Will South Carolina Vital Records honor a pre-birth order from another state?  Not so far

What is the typical time frame to obtain a birth certificate after delivery?  2-4 weeks

SAME SEX COUPLE

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 an international same-sex male couple obtain an initial birth certificate naming the biological father only?  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 can name the biological father alone or can add the non-bio father (either through marital presumption if married or through 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 & STEPPARENT 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. (If married, also have the option to add second parent through marital presumption without adoption.)

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. (If married, also have the option to add second parent through marital presumption without adoption.)

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:

Stephanie Brinkley
sbrinkley@brinkleylawfirmllc.com
www.brinkleylawfirmllc.com
(843) 277-9009

Jim Thompson
jamesfletcherthompson@gmail.com
(864) 573-5533

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