Surrogacy today in the United States can be complicated. Because there are no federal laws regulating the practice, surrogacy laws can vary tremendously from state to state.
Fortunately, the surrogacy laws in South Carolina make the process possible and legal for intended parents and prospective surrogates. However, if you’re looking to complete a surrogacy, you’ll need to work closely with an experienced surrogacy lawyer like attorney Jim Thompson to make sure you properly address all the surrogacy legal issues that could arise as you move forward with your surrogacy process.
To discuss your individual surrogacy situation and learn more about which gestational surrogacy laws may apply to you, please call us today at 864-573-5533. In the meantime, we’ve answered some of the common questions you may have about surrogacy laws in South Carolina as you’re deciding whether surrogacy is right for you.
1. Is surrogacy legal in South Carolina?
Surrogacy is legal in South Carolina, insofar as there are no laws or cases that prohibit it. The case of Mid-South Ins. Co. vs. Doe upholds the validity of surrogacy contracts.
However, because there are no surrogacy laws that specifically govern the process of surrogacy, the legal issues with surrogacy and how they are handled will likely vary by county and judge.
2. Is there a legal difference between gestational and traditional surrogacy?
Because the surrogate has a genetic relationship to the baby in traditional surrogacy, traditional surrogacy laws are different than gestational surrogacy laws.
Traditional surrogacy is not prohibited in South Carolina but, because the surrogate is related to the baby she’s carrying and has parental rights, the process is treated as an adoption under South Carolina law. Therefore, any compensation beyond that covered in the living expenses allowance of the adoption statute is illegal.
Gestational surrogacy laws in South Carolina, on the other hand, do not place restrictions on any compensation provided to the surrogate.
3. How do intended parents legally protect their parental rights?
Whether or not intended parents can obtain a pre-birth order in South Carolina will depend on the county and the judge reviewing their case. While the state law assumes that the woman who gives birth to a child is that child’s mother, advances in surrogacy law and the surrogacy process allow for pre-birth orders to be issued in most cases.
What kind of parentage order you will have to complete as intended parents will be determined by your individual situation (for example, if you’re married, if you’re biologically related to the child, etc.). Attorney Jim Thompson will make sure you take the necessary steps to protect your parental rights, whether that’s through a pre-birth or post-birth order or an adoption after birth.
4. What’s the difference between a pre-birth or post-birth order and an adoption after birth?
A pre-birth temporary consent order in surrogacy is a way for intended parents to establish themselves as legal parents before the child is even born. This allows for the intended parents to obtain custody of their child, once born, and to make medical decisions for their child. Once the child is born, there is a post-birth order process in order to have the intended parents’ names placed on the original birth certificate.
A pre-birth temporary consent order usually requires signed statements from the intended parents and the surrogate that the baby is not biologically related to the surrogate. The doctor who completed the embryo transfer will likely have to complete an affidavit saying the same. A post-birth order usually involves the same process but cannot be made legally effective until after the baby is born.
An adoption or paternity and stepparent adoption, after the birth, is usually completed in traditional surrogacy cases where a surrogate must relinquish her parental rights. Additionally in cases where a same-sex couple cannot place both their names on the birth certificate when the baby is born, the intended parents may need to complete a stepparent adoption or a second-parent adoption. Attorney Jim Thompson will determine whether this situation applies to you and, if it does, will follow all the legal steps to protect your parental rights and amend your baby’s birth certificate as soon as legally allowable.
5. How do I make sure I follow the surrogacy laws in South Carolina?
No matter whether you’re an intended parent or prospective surrogate, you will need the assistance of an assisted reproduction attorney to complete the legal aspects of your surrogacy — including your surrogacy contract and any necessary parentage orders. Attorney Jim Thompson can help, as he’s worked with many intended parents and surrogates in completing their surrogacies in South Carolina.
To learn more about the surrogacy law in South Carolina, please call the Law Offices of James Fletcher Thompson at 864-573-5533 or contact us online today.