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Assisted Reproduction

Proposed Legislation In South Dakota Could Criminalize All Surrogacy Arrangements

Steve Snyder, Chair of the ABA Assisted Reproductive Technology Committee, brought this proposed law to our attention. Basically South Dakota is telling those afflicted with infertility that they are no longer welcome in the state. Hyperbole? Perhaps a little. But some of the language in this legislation supports such an exaggeration:

Section 1. The Legislature finds that: (1) The enforcement of surrogacy agreements and contracts is contrary to the best interests of children, to the State policy that custody of children should be determined based upon the best interests of the children, that such arrangements are exploitive of women, that such arrangements are contrary to a mother’s interest in her relationship with her child, and contrary to the State’s interest in protecting the relationship between a mother and her child; and

(2) That surrogacy arrangements and contracts, whether written or oral, are in direct conflict with numerous public policies of the State of South Dakota, including: the State’s policy prohibiting offers of money or payment of money in connection with an adoption; the State’s policy against trafficking in children; the State’s policy thatno surrender of a mother’s parental rights or waiver of her constitutional right to her relationship with her child will be enforced if made prior to the birth of her child; and

(3) That surrogacy agreements and contracts are in direct conflict with, and are designed to terminate and destroy, the mother’s parental rights, her relationship with her child and her fundamental liberty and interest in that relationship, contrary to the established public policy and laws of the State of South Dakota.

The Surrogate’s “fundamental liberty”? Whatever happened to the Intended Parents fundamental constitutional right to procreate? There are a few more startling provisions in the bill including the ability to impose civil penalties of as much as $80,000 for anyone who proceeds with an altruistic surrogacy arrangement in South Dakota. Another problematic provision states:

Section 7. A surrogacy contract or arrangement, whether entered into in South Dakota, or in some other state, is unenforceable in South Dakota. A custody dispute concerning a child born as a result of a surrogacy arrangement shall be resolved under South Dakota law.

Presumably then under Section 7, a South Dakota couple using a gestational carrier in California (or any other state that permits surrogacy) could be exposed to a custody dispute in South Dakota by their out-of-state surrogate. This presents an interesting conflict of laws issue and if anyone has any additional thoughts on the ability of a South Dakota court to supersede a lawful judgment entered in another state (or a scenario where the surrogate moves to South Dakota to avail herself of more favorable law while circumventing the choice of law agreed upon in the contract), I would love to hear your opinion.

We will continue to follow the progress of this bill. If you are aware of any organizations opposing this legislation, please email me and I will be certain to post their information.

Update, 2/1/11 & 1:10 p.m.: Since this post was published, I came across another piece of pending legislation that might provide some insight as to what is in the South Dakota drinking water. Believe it or not, South Dakota House Bill No. 1237, introduced today by Republican State Rep. Hal Wick of Sioux Falls, wants to mandate compulsory gun ownership. I kid you not, according to the bill, “each citizen residing in the state of South Dakota who has attained the age of twenty-one years shall purchase or otherwise acquire a firearm suitable to their temperament, physical capacity, and personal preference sufficient to provide for their ordinary self-defense.” Someone please tell me this is some political gimmick to gin up support for something else.


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