Surrogacy Contracts in South Dakota: What’s Included and Why it Matters

South Dakota is unique because it doesn’t have a specific law on the books for surrogacy. There is no “Surrogacy Act” to follow.

Instead, your entire journey relies on the contract you sign. This document sets the rules for your pay, protects your medical rights, and tells the judge who the legal parents are. Since there isn’t a state statute to fall back on, this agreement is the only thing protecting you and the intended parents.

If you want to verify your process is legally compliant, contact a surrogacy specialist to learn more about our agency protocols.

What Should Be Included in a Surrogacy Contract?

Your surrogacy contract defines the interaction between you and the intended parents. In South Dakota, this document must be finalized and signed before you begin any medical procedures for the embryo transfer.

The contract generally covers several key areas:

• Intent and Parentage: This section states that you intend to carry the child for the intended parents and do not intend to be the legal parent. This clause is the evidence used to obtain a pre-birth order from South Dakota courts.
• Financial Terms: Your contract provides a detailed breakdown of compensation. This includes your base pay, monthly expense allowances, and specific reimbursements for maternity needs. It also establishes escrow account requirements to confirm money is available when needed.
• Medical Expectations: This chapter outlines the medical protocols you agree to follow, including IVF medications and prenatal care schedules.
• Liability and Risk: The agreement clarifies that you are not financially liable for the costs of the pregnancy or medical complications. It shifts the financial risk of medical bills entirely to the intended parents.
• Conduct and Lifestyle: To support a healthy pregnancy, the contract sets boundaries regarding travel, diet, and high-risk activities.

Are Surrogacy Contracts Enforceable in South Dakota?

Yes, but they function differently than in states with specific statutes. South Dakota is considered a “surrogacy-friendly” state because there are no laws prohibiting the practice. Since there is no ban, courts generally presume these contracts are valid.

South Dakota courts routinely grant pre-birth orders based on the terms of the surrogacy contract. This allows the intended parents to be named on the birth certificate immediately upon delivery, often without a hearing. Because this process relies on past court decisions rather than a written law, it is vital that your contract is drafted by an attorney familiar with local court procedures.

You can read more about the specifics of South Dakota surrogacy laws to understand how this flexibility benefits you.

What Happens If a Surrogacy Contract Is Breached?

A breach occurs when either you or the intended parents fail to meet a significant obligation listed in the signed agreement.

If a breach occurs, the contract details specific remedies. Since there is no state law to reference, the contract itself must dictate the consequences. Financial remedies are the most common outcome. For example, if a surrogate violates a safety protocol, she may lose specific payments or be required to reimburse the intended parents for lost cycle costs. If the intended parents breach the agreement by failing to pay, you would have the right to halt medical procedures until the financial issue is corrected.

Understanding Surrogate Compensation in South Dakota

South Dakota does not place a legal cap on surrogate compensation, allowing you and the intended parents to agree on a fair amount. Your contract will explicitly state the total compensation package and the timeline for every payment, providing you with financial predictability.

Your payments are generally divided into three distinct categories:

• Base Compensation: This is your primary fee for the service of surrogacy, typically paid in monthly installments starting after the confirmation of a fetal heartbeat.
• Allowances and Start Fees: You will receive payments to cover incidental costs. This includes a medication start fee when you begin injections and a monthly allowance for minor expenses like vitamins and mileage.
• Event-Based Payments: The contract will outline one-time payments for specific milestones, such as a maternity clothing allowance or fees for invasive procedures like amniocentesis.

To guarantee these payments are secure, your contract will mandate that the intended parents deposit the funds into a licensed and bonded escrow account prior to the start of medical treatment.

Medical Rights in a Surrogacy Contract

Although you are carrying a child for another family, you never lose your constitutional rights to bodily autonomy. Your contract creates a framework for collaboration while respecting your rights as a patient.

Key medical provisions typically include:

• Provider Selection: The agreement will confirm your right to choose your obstetrical care provider.
• Treatment Compliance: You agree to follow the medical advice and protocols prescribed by the fertility clinic and your OB-GYN.
• Information Sharing: You will sign HIPAA releases that allow the intended parents to speak with your medical providers and view medical records.

Pregnancy Termination & Reduction Clauses

This section is heavily influenced by state law. South Dakota has strict abortion laws, codified in SDCL § 22-17-5.1, which prohibit abortion unless “appropriate and reasonable medical judgment” determines it is necessary to preserve the life of the pregnant female.

You can view the official statute here: SDCL § 22-17-5.1.

• Legal Compliance: Your contract cannot require you to perform an illegal act. Therefore, termination clauses in South Dakota contracts are strictly limited to the narrow exceptions allowed by state law.
• Decision Power: While the contract may outline the intended parents’ wishes regarding genetic anomalies, the legal reality in South Dakota means that termination is rarely an option unless your life is in danger.
• Reduction: Selective reduction is generally not addressed by the same statute, but your contract will outline the specific medical circumstances under which it would be considered.

Lifestyle and Travel Restrictions

To protect the investment of the intended parents and the health of the baby, your contract will place reasonable limitations on your lifestyle.

Common lifestyle clauses include:

• Dietary and Substance Limitations: You will agree to avoid high-risk foods and completely abstain from alcohol, nicotine, and illegal drugs.
• Travel Restrictions: You may be restricted from traveling out of state after 24–28 weeks. This is critical to confirm you do not accidentally give birth in a neighboring state where parentage laws might be less favorable than South Dakota’s pre-birth order process.

What the Contract Says About Labor and Delivery

The birth plan is a central part of your contract. This section reduces stress for you and the intended parents by clarifying expectations for the hospital experience.

The contract specifies the hospital where you intend to deliver and states that the intended parents are permitted to be in the delivery room, provided hospital policy allows it. It also confirms that the intended parents have the authority to make all medical decisions for the baby immediately after birth. If you agree to provide breast milk, the contract sets a weekly compensation rate for this service and requires the intended parents to cover supplies and shipping.

Insurance Requirements in a South Dakota Surrogacy Contract

Your financial security is a top priority. Your contract will require a thorough review of your health insurance policy to determine if it can be used for a surrogacy pregnancy.

If your policy excludes surrogacy, the intended parents are contractually obligated to purchase a separate surrogate-friendly insurance policy for you. The contract will also require the intended parents to purchase a life insurance policy for you, typically with a benefit of $250,000 or more to protect your family’s financial future.

How Surrogacy Contracts Differ: Agency vs. Independent

Choosing between an agency-assisted journey and an independent surrogacy journey significantly impacts your contract experience.

In an independent journey, you are responsible for confirming your contract is comprehensive enough to convince a judge to grant a pre-birth order, as there is no specific statute to guide the process.

Working with a professional agency provides comprehensive support:

• Screening: Professionals protect you by pre-screening intended parents to verify they are financially capable.
• Legal Coordination: We manage the legal clearance process, connecting you with experienced South Dakota attorneys who know how to navigate the local court system.
• Mediation: If a disagreement arises, your specialist acts as a mediator to resolve the issue professionally.

Understanding the Contract Is Just the Beginning—We’ll Help You Navigate What’s Next in South Dakota

Your surrogacy contract is the foundation of a successful process. It protects your finances, respects your body, and confirms that you and the intended parents are united in your goals.

We are here to handle the details so you can focus on a healthy pregnancy. If you are ready to begin a journey where your rights are protected every step of the way, contact us online to speak with a specialist today.