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News & Infomation

SD Senate panel defeats commercial surrogacy ban

PIERRE, S.D. — A South Dakota Senate committee on Wednesday 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.


Sen. Arthur Rusch, a Republican from Vermillion, cast the deciding vote against the legislation after initially moving to approve it and send it on to the full Senate. He called it “one of the most difficult decisions that I’ve made.”


The House had previously passed the bill, which deals with the practice of having a woman being impregnated with an embryo from another couple.


The proposal would have made acting as a surrogacy agent a misdemeanor punishable by up to a year in jail. It would have made South Dakota one of a handful of states to criminalize the practice. Lawmakers said they would be more open to regulating surrogacy rather than passing an outright ban.


Women from a group of families that have had children through surrogacy opposed the bill. They have been frequent visitors to the Capitol as the bill progressed through the Legislature, making their case to lawmakers.


They argued that the bill is based on worst-case scenarios, mostly from other states, and that the commercial contracts protect both the women acting as surrogates and the intended parents.


Emilee Gehling, a lawyer who said she runs the state’s only commercial surrogacy agency, told lawmakers that she conducts psychological screenings and credit checks before facilitating a contract. She said that both surrogates and intended parents have lawyers representing them so they can work out any potential disputes before the pregnancy begins.


The women also took issue with the assertion that commercial surrogacy contracts lead to abortions, saying that they were motivated by giving children to families.


Several women who have been surrogates also voiced their opposition. Gehling argued that they deserved to be compensated for carrying a child.


When the final vote was tallied and it became clear that the bill would fail, the group of women collectively exhaled in relief. Several cried.


Gehling said she would welcome regulation of commercial surrogacy in the state and hoped to work with the bill’s proponents to come up with laws to protect women and potential parents.

South Dakota, It’s Time to Fight

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House Bill 1096 would make paying a surrogate’s lost wages illegal and make it a crime to match a potential surrogate with a potential parent if the surrogate is paid. Because of the broad language of the bill, you could become a criminal just for introducing two people who might help each other.


Infertility is a common problem. About 10 percent of women (6.1 million) in the United States ages 15-44 have difficulty getting pregnant or staying pregnant, according to the Centers for Disease Control and Prevention (CDC). Additionally, cancer can impact a woman’s fertility. When a woman’s reproductive system is altered or removed during a hysterectomy, she will likely be left unable to carry her own child. Chemotherapy drugs, hormone therapies and some forms of radiation may lead to temporary infertility, while others have side effects that may be irreversible.


For people unable to conceive due to infertility or medical conditions, surrogacy can be one of the only ways in which they finally create a family. It is an option for couples who have not been able to adopt and for couples hoping to rear their biological children. Surrogacy gives hopeful parents the opportunity to raise a child from birth. Elizabeth Waletich, of Britton, South Dakota, who became a parent through surrogacy said, “This is slamming the last door after so many doors have been slammed.”


It uses broad language that could have unintended consequences. The language could result in a South Dakota court unable to recognize a court order from another state if surrogacy was involved, a violation of the full faith and credit clause and thus unconstitutional. The language also would not allow someone to be paid lost wages for her time lost from work. In addition, it broadly defines a “broker,” which is in this context, a criminal, as any person who introduces two people who enter into a surrogacy contract in which the surrogate is paid, and making that a crime. Thus, an innocent friend could try to connect two people because she knows one is a potential parent and one a potential surrogate, and in doing so, he would be breaking the law.


The Bill is set for a vote on the House Floor, Tuesday, February 5


South Dakotans, RESOLVE: The National Infertility Association, the Academy of Adoption & Assisted Reproduction Attorneys (AAAA), and American Society for Reproductive Medicine (ASRM) are gearing up to fight this extreme legislation, and that takes all of us joining together to educate lawmakers about keeping all family building options available and legal in South Dakota.


Here’s how you can help:


1. Write or call South Dakota legislators and urge them to oppose Bill 1096


2. Contribute to lobbying efforts to defeat this


For tax-deductible options: Donations made by check can be mailed to RESOLVE, Inc. with a note that Funds are for South Dakota, 7918 Jones Branch Drive, Suite 300, McLean, VA 22102. Call Cindy Hollister at or 703.556.7177 for more information on Wire Transfers or donating by phone.


3. Share this message so other South Dakotans are aware of this legislation.


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