Is Surrogacy Legal in South Carolina?
Surrogacy Law in South Carolina
South Carolina Surrogacy Law: Types of Surrogacy
In South Carolina, gestational surrogacy is permitted because no statutes or case law prohibit it. There is case law on the books declaring it valid by way of acknowledging the validity of surrogacy agreements: Mid-South Ins. Co. v. Doe. Consequently, South Carolina is an intent based parenting state. Under In re Baby Doe, 291 S.C. 389, 392 (1987) that court determined that evidence of a parent’s intent to create life and hold a child out as their own, despite a lack of genetics, will result in legal parentage rights.
Traditional (genetic) surrogacy is also legal in South Carolina, but is treated more like adoption and, therefore, may be illegal—unless payments are reasonable pursuant to the adoption statute S.C. Code Sec. 63-9-310(F)(1).
The legal process to secure parental rights can vary across the state—it could be different in Columbia from how it is in Charleston, different in Myrtle Beach from how it is in Greenville. We strongly recommend retaining legal counsel, knowledgeable of reproductive law in the state. This is of particular importance if you’re pursuing surrogacy as an international candidate- that is, if you’re from outside of the United States and working with a surrogate in South Carolina.
Are There Surrogate Requirements in South Carolina?
No specific legal requirements exist to serve as a gestational surrogate in the state of South Carolina.
Does South Carolina Surrogacy Law Allow for Pre-Birth Orders?
Parentage Orders: Courts in South Carolina do grant pre-birth orders along with post birth orders, but the process to obtain orders varies across counties among judges.
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:
Yes
- 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
- Single parents using an egg or sperm donor
- Married same sex couples, using an egg or sperm donor
No
- Unmarried Same sex couples, using an egg or sperm donor*
*The biological parent can obtain a pre-birth order; a second-parent adoption must be obtained for the other parent to be so named, legally.
For intended parents who are in no way related to the resulting child due to use of donor embryos, no pre-birth order will be issued, and the parties must complete a post birth adoption of the child.
Surrogacy Conditions for Same-Sex Couples in South Carolina
Eligible for prebirth order and final order of parentage if married and at least one parent is genetically related. If not married, can obtain prebirth order for genetic parent and non-genetic parent must adopt after delivery. Consistent with South Carolina’s “intent to parent” position, pre-conception agreements are strongly advised.
Are There Options for Unmarried Intended Parents in the state of South Carolina?
If both parents are genetic contributors, they can obtain pre and post birth orders of parentage. If donor gametes are used, either one or both parents must adoption the child post birth.
Whose names go on the birth certificate in South Carolina?
Parents will be listed on the birth certificate as “mother” and “father.”
While a married same sex couple can obtain a birth certificate with both parents listed, an international same-sex male couple can obtain a birth certificate listing the biological father and gestational surrogate as parents, if needed to complete legal requirements in the native country.
Egg Donation Law
South Carolina 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 Carolina*.
Stephanie M. Brinkley
Brinkley Law Firm, LLC
1 Carriage Lane, Bldg. F, Ste. 100
Charleston, SC 29407
Phone: 843.277.9009
https://www.brinkleylawfirmllc.com
