An Act to prohibit commercial surrogacy contracts and provide a penalty for facilitating a commercial surrogacy.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That a NEW SECTION be added:

25-11-1. Definitions.

Terms used in this chapter mean:

(1) "Broker," 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;

(2) "Mother," the woman who carries a child or children in her womb and gives birth to the child or children, whether or not the woman is genetically related to the child;

(3) "Commercial surrogacy recipient," a person, whether or not genetically related to the child, born as a result of a commercial surrogacy, who intends to obtain custody of the child pursuant to the commercial surrogacy following the child's birth;

(4) "Commercial surrogacy," a contract, whether written or oral:

(a) Pursuant to which any person offers, gives, or receives any money or other consideration or thing of value;

(b) That is entered into by two or more persons, including the mother or a commercial surrogacy recipient, who agree, prior to insemination, or in the case of an implanted embryo or embryos, prior to embryo transfer or implantation, to participate in the creation cause the gestation of a child; and

(c) With the intent that the commercial surrogacy recipient or a person other than the mother will obtain custody of the child.

Section 2. That a NEW SECTION be added:

25-11-2. Facilitating a Surrogacy--Prohibition--Violation as misdemeanor.

Any broker who knowingly engages in, advertise services for, offers payment of money or other consideration for, profits from, solicits a woman for, or otherwise assists or participates in commercial surrogacy is guilty of a Class 1 misdemeanor. The provisions of this section do not apply to the mother; a health care provider, as defined in § 34-12D-1, that provides health care to a mother or child after conception; or to any person who pays the health care expenses of a mother or child.

Section 3. That a NEW SECTION be added:

25-11-3. Surrogacy Contracts--Unenforceable.

A commercial surrogacy, whether entered into in this state, or in any other state, is unenforceable and void in this state.