... Because Everyone Can Build a Family

GESTATIONAL SURROGACY IN SOUTH DAKOTA

Gestational Surrogacy is permitted in South Dakota because no statute or published case law prohibits it.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes

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: Yes
  • 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: Yes
  • Single parent: Yes

What are the bases for venue?  Unknown

Do results vary by venue?  Unknown, but results seem to be consistent across multiple counties.

If yes, are motions to waive venue accepted?  Unknown

Is a hearing required to obtain a pre-birth order?  Not typically

Is a pre-birth order possible in South Dakota based on a Gestational Carrier’s plan to deliver in South Dakota, if no party lives in South Dakota?  Probably

Will South Dakota Vital Records honor a pre-birth order from another state? Usually

What is the typical time frame to obtain a birth certificate after delivery?  4-7 days

SAME SEX COUPLE

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

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 only by 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 Dakota (i.e., neither of the Intended Parents lives in South Dakota)?  Yes, but South Dakota adoption law requires the adopting parent to live in the same household as the child for six months prior to adoption. In addition, if the adopting parent is not married to the biological parent, a home study is required. Therefore, adoption in South Dakota is only feasible for parents who reside in South Dakota. Usually, the Intended Parents must adopt in the state where they reside.

SECOND PARENT & STEPPARENT ADOPTIONS FOR SOUTH DAKOTA RESIDENTS

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

Will courts in South Dakota grant second parent adoptions or stepparent adoptions to heterosexual couples living in South Dakota? Yes
Does the couple need to be married?  No. Under South Dakota law, any adult can adopt. The child must live in the home of the adopting parent for at least six months prior to adoption.

Will courts in South Dakota grant second parent adoptions or stepparent adoptions to same-sex couples living in South Dakota?  Yes
Does the couple need to be married?  No. Under South Dakota law, any adult can adopt. The child must live in the home of the adopting parent for at least six months prior to 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 DAKOTA

Traditional Surrogacy is permitted in South Dakota because no statute or published case law prohibits it. A bill to regulate surrogacy has been drafted by the state bar, but it has not been introduced.


State law information provided by the following attorneys practicing Reproductive Law in this state:

Kenneth Tschetter
Sioux Falls, SD
kenmtschetter@gmail.com
http://tschetteradams.com
(605) 367-1013

Other attorneys practicing Reproductive Law in this state:

Emilee Gehling
Dakota Dunes and Sioux Falls, SD
Sioux City, IA
Emilee@goosmannlaw.com
www.goosmannlaw.com
(712) 226-4000