LRC Offers Memo on Surrogacy Laws

Rep. Jon Hansen (R-25/Dell Rapids) tried to outlaw surrogacy agreements last year, likely as a trick to close another avenue to equality and parenthood for same-sex couples. Rep. Hansen’s opposition to free association, contract rights, and family privacy stands in keen contrast to the freedom-loving principles of his South Dakota Republican Party that have made South Dakota a “surrogacy-friendly” state.

Among the many issue memos commissioned by the Legislature’s Executive Board is a Legislative Research Council draft discussing surrogacy laws. According to the LRC, South Dakota is one of 20 states that has no specific laws on surrogacy but, in the absence of prohibitions, is considered “surrogacy-friendly.” Fourteen other states and the District of Columbia have laws protecting surrogacy:

The LRC notes that, absent clear laws on surrogacy, parents engaging in a surrogacy contract could find their parentage claims tangled by the state’s legal presumption (SDCL 25-5-3) that the woman who gives birth to a child and her husband are the parents of said child. That presumption applies to the husband even if the marriage is dissolved up to ten months prior to the birth. Don’t tell Republicans Hansen and Governor Kristi Noem, but the LRC is sneaking out this message in favor of intelligent government:

Although South Dakota is known as a surrogacy friendly state where the courts generally treat surrogacy contracts uniformly, instituting clear laws and regulations can provide certainty to prospective parents and surrogates [SDLRC, Draft Issue Memo: Surrogacy, Nov. 2020].

But watch out: with no effective opposition to check his big-brother government impulses, Rep. Jon Hansen is less likely to propose legislation to clarify and protect our surrogacy friendliness and more likely to take another swing at his radical urge to use the big government in his party’s hands to ban South Dakotans from using surrogacy to become parents.