Why most surrogacy could become a crime in South Dakota

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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) — A bill in the South Dakota legislature could outlaw the people and companies helping to connect families to grow through surrogacy.

House Bill 1096, introduced on Sunday, would make it a class one misdemeanor for anyone to advertise or contract for commercial surrogacy.

Using an agency is commonplace in the United States, helping couples who cannot have children due to infertility, or disability and same-sex couples.

The agency model basically provides recruiting, assessing and selecting a surrogate, according to a Columbia Law School report on the legal issues surrounding surrogacy. They also match parents with surrogates and negotiate contracts with lawyers and hospitals.

There is no federal law in the U.S. regarding surrogacy, so it has become a state issue. New York and Michigan ban commercial surrogacy contracts. Lousiana bans homosexual couples and single people from surrogacy.

New York has made an effort to repeal its legislation, but that failed in 2019. Feminist Gloria Steinem, the Catholic Church and others came out in opposition of the repeal.

Gov. Andrew Cuomo (D-NY) said earlier this month he plans to support a second attempt.

New York Gov. Andrew Cuomo speaks at the Lesbian, Gay, Bisexual & Transgender Community Center, Monday, June 10, 2019 in New York. The governor is pushing to legalize gestational surrogacy and ban the gay and trans panic defense. (AP Photo/Mark Lennihan)

Arizona and Indiana have fewer restrictions than the other states, but prohibit surrogate contracts, according to Creative Family Connections, an organization tracking U.S. laws on surrogacy.

“Despite the wide degree of inconsistency across the U.S., most states are moving away from prohibition and towards regulation,” said the 2016 Columbia Law School report on “Surrogacy Law and Policy in the U.S.”

Outside of the U.S., altruistic surrogacy has become a growing trend in countries like Canada, Australia and the United Kingdom. All three countries outlaw commercial surrogacy. Altruistic surrogacy normally still includes the payment of expenses to the woman carrying the child, but nothing more than that.

What South Dakota’s proposed legislation would do

The South Dakota legislation would make any “broker,” who engages in or offers payment of money, profits or solicits a woman for commercial surrogacy a class one misdemeanor.

A “broker,” is defined in the bill as “a person, agency, association, corporation, partnership, institution, society, or organization, that knowingly seeks to introduce or to match a mother with a commercial surrogacy recipient, for the purpose of initiating, assisting or facilitating a commercial surrogacy.”

This penalty wouldn’t apply to the mother or healthcare provider. The bill would still allow people to pay for healthcare expenses of the mother or child.

Commercial surrogacy contracts would also become unenforceable in South Dakota.

The bill is co-sponsored by seven lawmakers and was introduced by Rep. Jon Hansen (R-Dell Rapids).

The American Civil Liberties Union of South Dakota has come out against the bill. In a statement to KELOLAND News, policy director Libby Skarin said the more lawmakers legislate solutions in search of problems, the more people suffer.

“The government has no business intruding into the very private and sometimes heart-breaking decisions that families must make when they are choosing to start a family,” Skarin said. “It’s time for our legislators to focus on issues that really matter to the people of South Dakota and stop trying to give the government control over the personal liberty of South Dakotans.”

Why do people pay agencies?

A local agency that would likely be hit by this legislation is Sioux Falls-based Dakota Surrogacy. The agency’s website estimates it can cost between $75,000 to $125,000 for a successful surrogate pregnancy.

Of that, $20,000 is dedicated toward agency fees, according to Dakota Surrogacy’s website.

In the U.S., agency fees vary widely, ranging between $6,000 to $54,000.

The actual breakdown of agency costs can range from a little more than 25 percent or less, according to a KELOLAND News analysis of Dakota Surrogacy’s estimated cost.

This is what is included in that $20,000 fee, according to their website:

  • Recruitment, pre-screening and initial medical review of your surrogate
  • Criminal background checks of surrogate and her partner
  • Criminal background checks for intended parents
  • Review of surrogates insurance policy for determination of coverage
  • Obtain maternity coverage insurance policy options if needed
  • Obtain newborn coverage insurance policy options if needed (generally only for international intended parents)
  • Coordinate medical screenings and testing with intended parents’ infertility clinic
  • Coordinate psychological screenings for all parties
  • Assist in locating attorneys for intended parents and surrogate
  • Engage escrow agent for management of escrow account
  • Coordinate with escrow agent to ensure proper disbursements in accordance with the surrogacy contract
  • Assist in locating and coordinating with local monitoring clinic for surrogate
  • Coordinate logistics of preparing for embryo transfer, including travel arrangements
  • Coordinate with attorneys to ensure all necessary documentation is obtained for a pre-birth order
  • Assist in obtaining additional support services, if needed, for surrogate and intended parents
  • Coordinate with hospital in advance of your baby’s birth
  • For international intended parents, assist in locating and coordinating with a local attorney to advise on immigration and parentage issues after you bring your baby home

Explore a more in-depth cost breakdown in an interactive graphic at the end of this story.

The debate

Surrogacy is a controversial topic across the globe. The law, science, ethics, and public policy all intersect on this issue, according to the Columbia Law School report.

The problem with the debate, according to the study, is the limited research in this area.

“Another is the fact that many of the potential harms of surrogacy are not easily measurable, but rather reflect normative judgments about what constitutes harm or risk of harm to society, with the result that much of the discussion is as philosophical as it is technical,” the report said.

The 2016 report found several areas of debate:

The child

There’s concern over the “commodification of children.”

The two sides look at this issue differently. One is “a contract for services or an exchange of parental rights” and the other is “a contract for the children themselves.”

As the Columbia report points out, in the first viewpoint the financial and legal arrangements are made prior to conception.

On the other side of this issue looks at this through the already established laws against slavery and trafficking.

There are also worries the child could become abandoned by following the birth, especially in places where a contract is not enforceable. It’s also unclear who is ‘biologically’ the parent if an issue would be raised in the courts. Some states like Iowa have addressed this issue by requiring “the biological parents to petition for adoption or to have the birth certificate re-issued,” according to Columbia.

The mother

Ethics issues regarding the mother is another hotly contested debate.

“Some commentators argue that prohibiting surrogacy restricts the freedom of women to use their reproductive capacity as they choose and that it is an affront to the autonomy of women to make their own choices about the way they will spend their time and their talents,” the Columbia report said.

On the other end, people against surrogacy say the compensation of the mother can lead to a few problems. One side argues the mother wouldn’t make a decision like had there not been compensated. The other side says surrogates may take this up solely for selfless reasons or to share the enjoyment of pregnancy with those who cannot conceive.

The other counter-argument, when it comes to having agencies, is that they are designed to screen out financially or emotionally unstable women who are more likely to change their minds.

Ethics experts, according to the Columbia research also look at a broader issue. Some argue “surrogacy objectifies women’s bodies, all women are in fact exploited in the context of surrogacy.”

That’s why liberal Steinem joined the conservative Catholic church in the New York fight.

“(Some) find the very concept of surrogacy to be contrary to the principles of feminism and offensive to women, the practice seems to make light of, or even ignore, the special and unknowable nature of motherhood,” the Columbia report found.

Finally, health of the mother is also a concern. Pregnancy has risks such as gestational diabetes, high blood pressure, childbirth complications and injuries.

The parents

Criminalization, as Columbia points out, could violate due process for the intended parents. The report looked at an argument from University of Washington Law Professor Peter Nicolas.

“Particularly given that a great number of intended parents are gay couples, criminalizing surrogacy violates equal protection and due process by excluding a specific class of parents from the right to procreate,” the report said.

What’s next?

The bill will first make its way through the House, then the Senate if it passes. It has not yet been referred to a committee, as of Monday afternoon.

KELOLAND News reached out to Dakota Surrogacy, but has yet to receive a response. We will update this story when we do.