Of all of the famous or disastrous surrogacy cases I have written about over the past half decade, literally none are from South Dakota. However, that hasn’t stopped the state parliament from worrying about surrogacy issues. South Dakota lawmakers have received more than a fair share of anti-surrogacy bills in the past few years. While the rest of the country went the other way over the past year – including New York, which recently passed a new law in support of surrogacy – South Dakota lawmakers almost criminalized the family building option when they considered House Bill 1096 and commercial surrogacy was completely banned in Mount Rushmore state. Fortunately, that bill died after the General Assembly of the House of Representatives passed the Senate.
Using the word “A”. (Abortion.)
This year anti-surrogacy advocates tried a different approach. On March 10, 2021, South Dakota legislature passed Senate Draft 183, which reads, “A bill to make certain treaty provisions relating to abortion unenforceable and punish them.” The bill currently on the desk by Governor Kristi Noem is expected to be incorporated into the law shortly.
The bill invalidates any provision of the contract if it “in any way:” (1) coerces, coerces, or attempts to coerce a pregnant woman into an abortion; (2) results in a breach of a contractual term when a pregnant woman refuses to undergo an abortion; or (3) results in the pregnant woman assuming the cost, obligation, or responsibility for refusing an abortion. “Furthermore, the draft law makes it a criminal offense for a person to“ require ”such a provision in a contract.
Is that a bad thing?
Of course, nobody wants someone to be forced to have an abortion! I think we can all agree on this. But that’s not really the problem. I spoke to South Dakota reproductive technology attorney Emilee Gehling about the likely new law. Gehling said the new law misunderstood the risks of surrogacy relationships and is likely to have negative consequences for families in South Dakota.
Under current law in South Dakota and most states, Intended Parents and Surrogates have in-depth discussions about how each would like to deal with the situation if the worst should occur. For example, if the surrogate mother’s life was at stake as a result of a complication in pregnancy and a choice had to be made between the surrogate mother and the fetus, the parties likely agreed that the surrogate mother should save her own life. However, under the new law, a provision requiring the surrogate to terminate her pregnancy may not be clear enough to trigger the law’s reach. This is problematic and will deter legal conduct that could be believed to potentially lead to criminal prosecution of the parties. Gehling is concerned that the bill creates fear and insecurity for expectant parents who have already been through so much, while the bill is unlikely to do anything about abortion or compulsory abortion (if any) in the state.
Does it change anything?
Besides making it complicated, does the law change whether parties are free to set out their agreements? Not really. Without a specific coercive anti-abortion law, surrogacy lawyers across the country are advising their clients that a surrogacy agreement clause related to abortion cannot be specifically met. According to the state of constitutional case law, a pregnant woman has the right to decide whether or not to continue a pregnancy. This right is of course subject to restrictions and regulations that may vary by state, but none of these regulations apply to whether or not the pregnancy is a surrogate pregnancy. Regardless of what a contract says, any court that rules the matter is likely to find that a right to an abortion remains the right of the pregnant person.
Of course, the law rules out a possible breach of contract claims if a replacement has acted in a manner other than that agreed in the contract (including in connection with an abortion). So this is something new. However, to date, I have never seen a case in South Dakota or anywhere else where a surrogate mother was sued for violating a surrogacy contract related to terminating or continuing a surrogate pregnancy.
Hope for the future
While Gehling believes Senate Bill 183 is missing the mark, she believes healthy surrogacy arrangements can continue to exist in the state. She is a member of a nonprofit called Families from South Dakota Surrogacy, Inc. that hopes to work with lawmakers in the next session to bring new bill to the state that supports surrogacy agreements and all parties to the agreement, including the child , protects.
Ellen Trachman is the executive attorney for Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at [email protected].