Since modern surrogacy’s inception, there have been many hot debates as to how to protect those parties that are involved – both Intended Parents and Surrogates. Sadly, many of those that want laws past, prefer banning it, rather than truly understanding it and creating an environment of collaboration. In January 2020, South Dakota reintroduced legislation with advocates who wanted the criminalization of surrogate pregnancies in the state. Despite no disastrous surrogacy journeys coming from this state, the South Dakota law makers remained concerned about surrogacy.
This is not the first time South Dakota has tried to pass legislation criminalizing surrogacy. House Bill 1096 proposed banning commercial surrogacy in the Mount Rushmore state, thankfully the bill died in the State’s Senate.
The most recent bill was passed by the House and aimed to criminalize agents that facilitate commercial surrogate pregnancies in the state of South Dakota. According to the law, “any broker who knowingly participates in commercial subrogation would be guilty of providing services, offering payment of money or other consideration, benefiting from them, soliciting a woman or participating in another way in commercial subrogation”, an administrative offense class 1. This would make it a misdemeanor punishable with up to one year in jail.
Lawmakers were and still are concerned that surrogate pregnancies without regulations would open the doors for abuse.
The bill exempted “altruistic surrogate pregnancies, allowing the surrogate and child’s health care costs to be covered.
Emilee Gheling of Dakota Surrogacy agency created an agency to protect surrogates, parents, and children. She runs the agency properly, conducting health tests, screenings, and a legal process to protect everyone involved. Gheling runs one of the only surrogacy agencies in South Dakota and she feels that this bill targeted her agency and the surrogates and Intended Parents she works with.
While she remains open to regulation of the issue, the bill had too many flaws. Women in the state who have used surrogacy to create their families are worried that this bill could push surrogacies underground. This would mean unsafe conditions for all involved. People will turn to Craigslist or Facebook to find surrogates and cut corners that agencies never would.
A South Dakota Senate committee on Wednesday narrowly rejected a measure that would have criminalized commercial surrogate pregnancy agents, making it unlikely for such a ban to win approval this year.
The Senate Health and Human Services voted down the bill 4-3 after a debate pitting some families who have used surrogates for pregnancy against critics who argue the practice exploits and endangers women and babies.
Sadly, March 2021 has not brought good news for surrogate pregnancies in South Dakota. Recently the South Dakota legislature passed Senate Bill 183, called “An Act to declare certain contract provisions regarding abortion as unenforceable and to provide a penalty therefor.” Unfortunately, it is expected to be signed this year.
The bill invalidates any contract provision if it “in any way: ‘(1) Coerces, compels, or attempts to compel a pregnant woman to undergo an abortion; (2) Results in a breach of any term of the contract if a pregnant woman refuses to undergo an abortion; or (3) Results in the pregnant woman assuming any cost, obligation, or responsibility for refusing to undergo an abortion.’” Further, the bill deems it a crime for any person to “require” such a provision in a contract.
We can all agree that no woman wants to be forced int
o having an abortion, but that is not the issue at hand. The law misunderstands the risks that surrogacy poses and the consequences for South Dakota families.
The bill is problematic because it creates fear and uncertainty for hopeful parents-to-be who have already been through the ringer. For example, the new law states that if a surrogate’s life was at stake due to a complication with the pregnancy, then the parties would most likely agree that the surrogate should save her own life. Under this new law, a provision that contemplates the surrogates terminating her pregnancy could be ambiguous enough to trigger the reach of the statute. It’s also unlikely that this bill will do anything to curb the abortion coercion that happens in this state or any state.
The real question at hand is does this bill change anything? Honestly, no, as it stands — without any specific anti-abortion coercion law, there can be no specific performance of any surrogacy agreement clause relating to termination of a pregnancy.
While the Senate Bill 183 misses the mark, there is still hope for the future. There is a nonprofit organization called Families from South Dakota Surrogacy, Inc. plans to work with state legislators to introduce a new bill to be supportive of surrogacy arrangements and all parties involved.