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Is Surrogacy Legal in South Dakota?

Surrogacy Law in South Dakota

South Dakota Surrogacy Law: Types of Surrogacy

In South Dakota, gestational surrogacy is permitted because no statutes or case law prohibit it. The courts are generally favorable, and often will issue pre-birth orders. A bill to regulate gestational surrogacy has been introduced in the 2022 legislature.

Traditional (genetic) surrogacy is also implicitly permitted in South Dakota, because no statute or published case law prohibits it. However, traditional surrogacy is quite rare and fraught with potential legal problems, and the Courts generally are not favorable to traditional surrogacy.

Are There Surrogate Requirements in South Dakota?

No specific legal requirements exist to serve as a gestational surrogate in the state of South Dakota.

Does South Dakota Surrogacy Law Allow for Pre-Birth Orders?

Parentage Orders: Courts in South Dakota do grant pre-birth orders and do so with more consistency than some other states.

The conditions under which intended parents could be declared legal parents with a pre-birth order if at least one parent is genetically related to the child are listed below:


  • Married heterosexual couples, using their own egg and own sperm
  • Unmarried heterosexual couples, using their own egg and own sperm
  • Married heterosexual couples, using a sperm or egg donor
  • Unmarried heterosexual couples, using an egg or sperm donor
  • Same sex couples, using an egg or sperm donor
  • Single parents using an egg or sperm donor


For intended parents who are in no way related to the resulting child, the conditions under which intended parents could be declared legal parents with a pre-birth order are listed below:


  • Married heterosexual couples
  • Married same sex couples
  • Unmarried heterosexual couples
  • Unmarried same sex couples
  • Single parents


Whose names go on the birth certificate in South Dakota?

Parents will be listed on the birth certificate as “parent” and “parent.”

An international same-sex male couple can obtain a birth certificate listing the biological father and gestational surrogate as parents. A later amended version can list the two fathers as the legal parents, if the second parent completes an adoption. South Dakota adoption law requires the adopting parent to live in the same household as the child for six months prior to adoption, making this method largely out of reach for international intended parents, unless they are able to complete an adoption in another state more quickly.

Surrogacy Conditions for Same-Sex Couples in South Dakota

Conditions are favorable for same-sex couple to use a surrogate in South Dakota.  Same-Sex couples are treated the same as heterosexual couples under the statute and they can be married or unmarried and use their own genetics and/or donors.

Are There Options for Unmarried Intended Parents in the state of South Dakota?

Yes, unmarried intended parents can proceed in the same fashion as married intended parents.

Egg Donation Law

South Dakota currently has no case law or statutes to govern a donor’s rights to children resulting from a surrogacy agreement.

State law information verified by the following (ART) Assisted Reproductive Law attorney licensed in South Dakota*

* This information is for general informational purposes only and is not, nor is it intended to be, legal advice. We strongly recommend retaining legal counsel, knowledgeable of reproductive law in the state.

Do you have questions about surrogacy law in your state? ​