Senators defeat proposed ban on commercial surrogacy in South Dakota

PIERRE — Commercial surrogacy can produce joyful stories of couples becoming parents after years of infertility, or it can lead to horror stories about women feeling abused and exploited, senators heard on Wednesday.

Senators on the Health and Human Services Committee struggled with their votes on House Bill 1096 to ban commercial surrogacy in South Dakota before narrowly sending it to the 41st legislative day, effectively killing it, in a 4-3 vote.

After sitting in silence because they didn’t know which way to take the discussion, the senators said it was a “difficult” decision because surrogacy gives parents an option to have a child, but they have concerns about problems that can arise from surrogacy. They didn’t want to ban commercial surrogacy, but they also didn’t want to leave it as unregulated as it is now.

Sen. Arthur Rusch, R-Vermillion, said presiding over adoptions were the happiest moments for him as a judge, but making a child the subject of a contract is “very troubling to me.” Sen. Helene Duhamel, R-Rapid City, said she had concerns about surrogacy, but banning it would push it underground where it would be entirely unregulated.

Sioux Falls Republican Sen. Deb Soholt, who has been part of surrogacy pregnancies as a nurse, said she agrees there can be problems of rogue contracts and exploitation of women.

“On the other hand, I think about, and am troubled by, the paternalistic nature of women, as adults, are not cognizant to decide things for themselves without good information,” Soholt said.

She said she was concerned about the bias in the bill about who is a mother and “very extreme” language about money that could be confusing for people in an altruistic surrogacy, which the bill wasn’t banning.

Emilee Gehling, an attorney and co-founder of South Dakota’s only surrogacy agency Dakota Surrogacy, asked the senators to pass legislation regulating surrogacy rather than banning it.

Soholt noted that the bill supporters and opponents see the issue through entirely different lenses.

Exploitation of women and children

Bill sponsor Rep. Jon Hansen, R-Dell Rapids, said that custody of a child shouldn’t be decided by a commercial contract because it’s not in the best interest of that child, and a contract about a baby that involves money leads to the coercion of women and “unborn children that can be treated as property that can be discarded.”

Gehling pointed out that adoption and divorces also involve legal contracts about the custody of children.

Jennifer Lahl, president of the Center for Bioethics and Culture in California, told senators of cases outside of South Dakota where surrogates have had health complications or died due to the pregnancy. There’s additionally a high risk of exploiting women in surrogacy situations, she said. She said the bill isn’t about having empathy for couple facing infertility, but rather about surrogacy situations that go wrong.

Gehling responded that South Dakota hasn’t had an adversarial court case about surrogacy in the 30 years it has been legal in the state. Additionally, the South Dakota surrogate whose negative story was relayed by Family Heritage Alliance wouldn’t have been accepted by her agency as a surrogate. The surrogates in her agency go through psychological and financial screening, and many who apply to be surrogates aren’t accepted, she said.

Bill opponents also took issue with supporters arguing that the surrogate was the mother of the child. Opponents said that the baby is the biological child of the intended parents and not genetically linked to the surrogate.

‘These are our children’

No parents or surrogates testified in person in favor of the bill, but the line of women who had either used a surrogate or were a surrogate waiting to testify in opposition to the bill stretched out of the committee room into the hallway on Wednesday.

Sioux Falls resident Lisa Rahja had seven miscarriages, one ectopic pregnancy and one stillbirth. She saw a reproductive endocrinologists, two genetic counselors and multiple gynecologists, and there was no medical reason why she lost nine pregnancies, she said. After five years, she and her husband turned to surrogacy, and she asked 15 women who were family and friends to be a surrogate before they found a surrogate, she said.

Britton resident Elizabeth Waletich and her husband turned to surrogacy after she was diagnosed with a reproductive disorder 10 years ago. They consider their surrogate a part of their family, and their daughter “came into the world with love,” she said. They have one embryo left to add a second child to their family, and she asked senators what would happen to that child if they passed the bill.

“We are that one in eight couple who face infertility,” she said. “Proponents of Bill 1096 say that surrogacy does not consider the best interest of the child. This could not be more untrue, as well as deeply offensive.”

Jenny Boe of Pierre had a hemorrhage when she was pregnant with their daughter. If the bill passed and only altruistic surrogacy is allowed, it will leave them with no legal standing when using a surrogate to have a second child because they won’t be able to have a contract with a surrogate, she said. That could lead to custody battles in court and the surrogate being able to use drugs or move away during the pregnancy, she said.

“This is real. This is our lives,” she said. “These are our children.”

by Lisa Kaczke – Originally published on February 26, 2020 in the Argus Leader