Surrogacy ban passes South Dakota House of Representatives

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In this March 25, 2018 photo, Jess Eggert, left, sits with Courtney Reeves, Andrew Reeves and their five-month old son Jon in the Reeves home n Bend, Ore. Eggert was a surrogate for Reeves last Fall. (Ryan Brennecke/The Bulletin via AP)

PIERRE, S.D. (KELO) — Lawmakers in the South Dakota House of Representatives are pushing forward with a ban on commercial surrogacy, but also will study the topic in-depth in a 2020 summer study session. The bill passed 46 to 20, with three members excused.

The bill will now move to the Senate, before possibly heading to Gov. Kristi Noem’s (R-SD) desk.

There has been public opposition against the bill by members of the surrogacy community, including Emilee Gehling. She is an attorney focused on gestational surrogacy and adoption. Gehling also co-founded a surrogacy agency in Sioux Falls.

“This bill effectively would shut the door on all surrogacy,” Gehling said in an interview with KELOLAND News on Wednesday. “The way the language is written, it’s not carefully drafted.”

Gehling was in Pierre Thursday, with several surrogates to advocate against the bill.

Lead sponsor Rep. Jon Hansen (R-Dell Rapids) said in a committee hearing last week that he is protecting the children and surrogates.

“This bill bans commercial businesses, who profit off the buying and selling of children,” he said. “Making a commodity of mothers and children and bans enforcement of contracts.”

On Thursday, the House debated deleting most of the wording in the bill, and instead go to a summer study. That path forward was defeated.

Instead, a compromise of both passing the bill and doing a summer study was passed, but not without opposition.

Lawmakers also debated pushing the effective date to 2021, rather than July 1, 2020. One reason was to clarify language in the bill and let a summer study consider the issue before it goes into effect. Another was to allow more time for current surrogacy contracts to finish.

“I think that we want to have a transition, so people can move from commercial to altruistic surrogacy,” Rep. Jess Olson (R-Rapid City) said on the House floor. “One of our jobs is to make sure language is clear.”

Hansen argued there is already a grandfather clause in place, and he believes the bill needs to go into effect as immediately as possible.

The effort to delay to 2021 failed. If it’s signed into law, the bill will go into effect in summer 2020. That means a summer study may not be complete, if the bill is enacted, by the time it becomes law.

Rep. Erin Healy (D-Sioux Falls) tried to clarify several misconceptions related to the bill and speak on behalf of the opponents to the bill who were sitting in the House gallery.

“It is wrong to choose the route to criminalize (surrogates),” Healy said.

She pointed to regulations, rather than a ban. This is something Gehling agreed to in an interview with KELOLAND News.

“You take 30 years of surrogacy developing in the State of South Dakota. 30 years and then you get a group of people together and in two hours you try and figure out this very complex issue. It doesn’t happen,” Gehling said. “That’s not enough time.”

Rep. Taffy Howard (R-Rapid City) said you should not put a price tag on children and is worried about exploiting women.

“This bill is not about criminalizing women and will not criminalize women,” Howard said.

Rep. Linda Duba (D-Sioux Falls) pushed back.

“Let’s be factual here,” Duba said.

She pointed to medical, psychological and financial exams that surrogates and parents go thorough to ensure exploitation doesn’t happen.

Officials with Dakota Surrogacy, the state’s only agency, backed that up saying there is a screening program involving financial and psychological exams, to ensure women aren’t being pressured to do this for financial gain and know all the risks involved.

“We have families in the gallery today and they are counting on us to do the right thing,” Duba said.

Hansen would like parents to consider an altruistic surrogacy or adoption.

“I don’t have all the answers for everyone. I pray that adoption might be the answer for some, but I do know that making for-profit business and commodities out of mothers and children is wrong,” Hansen said in an interview with KELOLAND News last week.

Altruistic surrogacy normally still includes the payment of expenses to the woman carrying the child, but nothing more than that. Gehling said this legislation wouldn’t allow altruistic surrogacy.

Rep. Tamara St. John (R-Sisseton), who originally voted for the bill in committee, expressed some concerns after talking with constituents.

Rep. Carl Perry (R-Aberdeen) said he is pro-life and is against the bill. He said his nephew had a baby through surrogacy and can’t see taking this right away from people. Perry said on the House floor that he supports regulation but doesn’t know enough about the issue and voted against the bill.

Rep. Sue Peterson (R-Sioux Falls) voted for the bill and said she believes the bill, with a summer study, is the best path forward.

Rep. Jamie Smith (D-Sioux Falls) voted against the bill because he said it’s rushing an issue that would impact one agency in the state, which is willing to work with lawmakers for regulation.

“We need to let the summer study that does its job. I want to protect people, I want to protect people, I want to protect children, but I don’t think this is the right way,” Smith said. “Without our help in doing (surrogacy) right, we could really mess up.”

This is a developing story.