To the editor:
Problems with House Bill 1096’s Statutory Language
The language of the bill goes beyond commercial surrogacy.
The bill’s title is misleading. The title and proponents are claiming they are merely trying to prevent “commercial” surrogacy - which happens to be the most common form. However, the overly broad language used in the bill would apply to all surrogacy arrangements in the state. Here’s how:
25-11-1(4) defines commercial surrogacy as a “contract pursuant to which any person offers, gives, or receives any money or other consideration or thing of value....” Thus, 25-11-3, which makes commercial surrogacy unenforceable and void, applies to any surrogacy contract in which anything of value is received. The bill’s author included an exception for health care costs, but that exception only applies to 25-2-2, the misdemeanor section. The exception does not apply to the proposed legislative provision that makes surrogacy arrangements unenforceable.
Even if the bill allowed for medical expenses to be paid by the intended parents, it does not allow other common expenses in altruistic surrogacy, including such things as lost wages, childcare, travel, etc.
The bill’s definition of “broker” is overly broad and will apply to non-profit agencies and even lay people. For instance, a person who happens to know a couple who is looking for a surrogate and a woman who is interested in surrogacy, if he or she were to introduce the parties together and any “thing of value” is exchanged, he or she is guilty of a misdemeanor.
Finally, 25-11-3 is unconstitutional. The language would direct a South Dakota court not to enforce an order from another jurisdiction, in violation of the Full Faith and Credit clause of the United States Constitution. Under the Full Faith and Credit clause, a court in one state must enforce an order made in another state or territory. The consequences of this proposed legislation could mean that a South Dakota court doesn’t even recognize a birth certificate issued in another state, if the person listed was born out of surrogacy. This could apply years, even decades, perhaps a lifetime after the person’s birth.