Gestational Surrogacy Regulations in South Dakota

Overview

Gestational Surrogacy is generally permitted in South Dakota. There are no statutes or published case law that specifically permits or prohibits surrogacy.

Intended Parents

Age requirement:
18 years of age or older
Marriage requirement:
No
Married heterosexual couple:
Yes
Married same-sex couple:
Yes
Unmarried heterosexual couple:
Yes
Unmarried same-sex couple:
Yes
Resident status:
No*
Independent legal counsel:
Yes

Gestational Surrogates

Age requirement:
18 years of age or older
Marriage requirement:
No
If married/partnered:
husband’s/partner’s sperm cannot be used
Surrogate status:
Gestational and Traditional Surrogacy
Resident status:
No*
Use of own embryos:
No
Independent legal counsel:
Yes
*as long as the IP(s) or GC are residents of South Dakota, there is basis for venue in South Dakota. There is also basis for venue if the child is born in South Dakota

Embryos

Intended Parents own sperm:
Yes
Intended Parents own eggs:
Yes
Intended Parents using sperm donor:
Yes
Intended Parents using egg donor:
Yes
Intended Parents using both egg and sperm donor:
Yes

Birth of Child

Birth in South Dakota:
Yes
Birth outside of South Dakota:
Yes

Pre-Birth Orders can be obtained by any Intended Parent, whether married or unmarried, a heterosexual or same sex couple or individual, and even if neither Intended Parent is genetically related to the child. Post-Birth Adoptions are also available.

Parentage

Pre-Birth Orders:
Yes
Hearing to obtain Order:
No
Post-Birth Orders:
Yes

General Information

Will South Dakota Vital Records honor a Pre-Birth Order from another state:
Yes
What is the typical time frame to obtain a birth certificate after delivery:
4-7 days
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 an international same-sex male couple subsequently obtain a birth certificate naming only the biological father or both fathers with no mention of the Gestational Carrier:
Yes* (only by adoption)

Second Parent and Stepparent Adoptions for South Dakota Residents:

This situation typically arises if the child is born outside of South Dakota. The parents then return to South Dakota to obtain a second parent adoption or stepparent adoption in South Dakota. Please consult with your attorney on this matter if this issue is to arise.

Traditional Surrogacy in South Dakota?

Traditional Surrogacy is generally permitted because no statute or published case law prohibits it. Please consult with a local attorney to determine if you can move forward with traditional surrogacy.
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Disclaimer - The information provided on these pages does not, and is not intended to, constitute legal advice; all content is for general informational purposes only and may not constitute the most up-to-date legal information, either. Please consult with an ART Lawyer for legal advice specific to your case.