This article has been revised to reflect the following correction: Ella Daae said “battle of infertility.”
PIERRE, S.D. (KELO) — A bill outlawing most surrogacy in South Dakota passed in the House Judiciary Committee on Wednesday.
After nearly two hours of testimony on both sides, the committee voted along party lines to move the commercial ban of surrogacy to the full house chamber.
🗳 The vote was 11-1, with one additional lawmaker excused
Rep. John Hansen (R-Dell Rapids) is the sponsor of House Bill 1096.
“There are some things that money can’t buy,” Hansen said. “My heart goes out to anyone struggling with infertility, as I said before, I don’t have the answers for everybody. I do pray that adoption is the answer for some of these individuals. I do know that making a for-proft business and commodity out of mothers and children is wrong.”
Several surrogate mothers testified against the bill, along with a South Dakota agency connecting parents with surrogates. Emilee Gehling is the co-founder of Sioux Falls-based Dakota Surrogacy and a lawyer specializing in the area.
“What surrogacy does, is allow parents with no other option a path to parenthood,” Gehling testified by phone. “These folks go through so much, please don’t take away their last hope to become parents.”
House Bill 1096, introduced earlier in the week, would make it a class one misdemeanor for anyone to advertise or contract for commercial surrogacy.
Using an agency is commonplace in the United States, helping couples who cannot have children due to infertility, or disability and same-sex couples.
The agency model basically provides recruiting, assessing and selecting a surrogate. They also match parents with surrogates and negotiate contracts with lawyers and hospitals.
Hansen was the first to testify. He said his bill would not ban altruistic surrogacy. Altruistic surrogacy normally still includes the payment of expenses to the woman carrying the child, but nothing more than that. This is a practice common in Canada, Australia and the United Kingdom.
“This bill bans commercial businesses, who profit off the buying and selling of children,” he said. “Making a commodity of mothers and children and bans enforcement of contracts.”
In addition to his testimony, the committee heard from Jennifer Lahl of the Center for Bioethics and Culture. She flew in from California to testify.
Lahl compared surrogacy to organ donation and explained that society wouldn’t allow people to pay for a kidney transplant, as an example.
“The U.S. has one of the highest maternal mortality rates in the developed world, having doubled from 1991 to 2014, and we are the only developed country who has a maternal mortality rate that is rising,” Lahl said. “Knowing the high risks of pregnancies to women, and even higher risks to surrogate pregnancies, why would we not want to pass legislation that will help reduce this mortality rate?”
The statistic isn’t exactly accurate, according to the Centers for Disease Control and Prevention. In 1991, the ratio was 10.3 deaths per 100,000 births. That number rose 18 in 2014, but has since dropped a little in 2015 and 2016. The CDC warns rates could be varied due to computer issues, new ways to identify cause of death and the way cause of death is coded on the death certificate in many states.
“Whether the actual risk of a woman dying from pregnancy-related causes has increased is unclear, and in recent years the pregnancy-related mortality ratios have been relatively stable,” the CDC said.
Lahl spoke of several instances of women who were exploited due to their income. One of those was a South Dakota surrogate named Kelly Martinez.
Lahl worked on a documentary called #BigFertility, which featured Martinez. The surrogate mother to three different couples said she had to lie to a French consulate at one point and was both used and exploited.
She said she was a surrogate mother to children of three couples: one from France, one from the U.S. and another from Spain. Through each of these, she said, she faced harm from the agencies she dealt with the couples. The last time, she had to deliver the babies prematurely and faced severe medical issues.
“(The couple) didn’t pay my medical bills,” Martinez said. “The agency said they represented both of us, but not responsible.”
The exact opposite was true of Ella Daae. She is an emergency room nurse in Sioux Falls and a three-time surrogate. Through a scenario to the lawmakers, Daae explained the worries of taking surrogacy underground without contracts and moving to platforms like Craigslist.
“As a couple that has already been through so much heartbreak, this bill is going to add the pitfalls of finding their own surrogate and trying to figure out the legalities of surrogacy. Agencies protect couples and surrogates alike,” she said.
Daae calls agencies the experts. She said they do the medical, psychological and financial screenings.
“Now this same couple who has already gone through the battle that is infertility, can go to the agency, look through pre-approved surrogate profiles, in order to find a match that best suits them. They can go knowing they’re going to have a miracle in the end,” she said.
Officials with Dakota Surrogacy backed that up saying there is a screening program involving financial and psychological exams, to ensure women aren’t being pressured to do this for financial gain and know all the risks involved.
For Daae, her motives to help grow families were not financially driven, however, she did say it helped her to go to nursing school as a single mother.
Rep. Schyller Borglum (R-Rapid City), who is running against U.S. Sen. Mike Rounds in the 2020 election, brought up similar concerns about taking surrogacy underground.
“It may be better served to use a code of ethics and regulate it,” she said.
Borglum, however, voted in favor of the bill to move out of the committee.
Regulation is something that Gehling wants. She and her agency follow specific codes of ethics in this field. She also proposed a summer study session, and for the House to wait for the South Dakota Bar to review the bill.
Lahl rebutted with regulation, saying in her home state of California, regulations haven’t worked.
South Dakota Right to Life, Family Heritage Alliance Action and South Dakota Catholic Conference all spoke in support of the bill.
Another surrogate and group LEAD South Dakota also spoke in opposition.
The lone vote against the bill was Rep. Ryan Cwach (D-Yankton). He supported getting rid of contracts but was against criminalization because there isn’t any criminal intent.
“A struggling couple, maybe desperate, maybe going on Craigslist, desperately yearning to have a child and run out of options,” Cwach said. “We’re making that a crime. I don’t think they’re acting as criminals by expressing that frustration.”
The bill was amended to put a grandfather clause on contracts until July 1, 2020 and clarified some language.
House Bill 1096 will head to the full House, before going to the Senate.
Introduced ➡ Referred to Committee ➡ Chamber Vote ➡ Next Chamber ➡ Governor’s Desk ➡ Bill Becomes Law
Purpose of bill: An Act to prohibit commercial surrogacy contracts and provide a penalty for facilitating a commercial surrogacy.
This bill would keep commercial brokers out of the surrogacy business in South Dakota has been filed.
HB 1096 would make it a class one misdemeanor, punishable by up to one year in county jail, for people to advertise or contract for commercial surrogacy.
It wouldn’t apply to the mother who is carrying the child in her womb and gives birth to the child, whether or not she was genetically related to the child.
Latest actions on the bill