It seems that reproductive freedoms are under constant attack during this election cycle. First they came for the contraceptives. Now South Dakota is poised to deny infertile couples the right to access a commercial surrogate, while simultaneously making altruistic surrogacy so perilous that it will operate to end all surrogacy in the state.

This is not the first attempt by South Dakota to outlaw surrogacy. In last year’s session, lawmakers sought to impose criminal penalties on doctors, lawyers and parents who proceeded with a compensated surrogacy arrangement. The most recent attempt seeks to not only ban compensated surrogacy arrangements, but to render all compassionate surrogacy contracts unenforceable while granting legal status and automatic custody of any child born out of such arrangements to the gestational carrier:

Faced with a key deadline, South Dakota lawmakers approved a controversial ban on surrogate pregnancy contracts and directed schools to address bullying but refused to ban a common cough syrup ingredient. By the end of Tuesday’s session, the Legislature had to pass or reject every bill out of the house in which it was introduced. Faced with this deadline, the House of Representatives met all afternoon while the Senate debated well into the evening.

One of the most controversial measures was House Bill 1255, which prohibited the enforcement of surrogate pregnancy agreements. Supporters like Rep. Roger Hunt, R-Sioux Falls, said they weren’t against couples using surrogate mothers and didn’t intend to interfere with that. Instead, they targeted commercial surrogacy agreements, where women serve as surrogate mothers in exchange for money.

HB 1255 would ban the legal enforcement of any surrogacy agreement. “What this bill is doing is stopping the sale of babies,” Hunt said.

Critics said the bill would cripple the use of a modern technology that has helped many families have children when they otherwise couldn’t.
Rep. Tona Rozum, R-Mitchell, said the bill directly impacts couples and said proponents should bring a more narrowly focused bill to target abuses of surrogacy instead of going after surrogacy agreements more broadly.

Lawmakers also debated how the measure would affect adoption law, whether the genetic parent or birth parent would have priority over the infant, and other complications.

The measure passed 36-34.

Note to Representative Hunt: by outlawing commercial surrogacy and granting maternal and custodial rights to gestational carriers in altruistic arrangements, you are effectively denying South Dakotans access to in-state surrogates to begin their families. This is nothing more than a transparent attempt to rollback reproductive freedoms to advance a conservative political agenda. As Representative Rozum correctly pointed out, there are far more effective ways to address potential surrogacy abuses than prohibiting the practice altogether. Sadly, it looks as if South Dakotans struggling with infertliity will need to look outside their state in order to start their families.