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Bill that would ban commercial surrogacy in SD passes through committee

Kelly Martinez, second from right, a South Dakota mother who has provided surrogacy services to three couples through commercial surrogacy agencies, testified in support of the bill during a committee hearing on Wednesday, Jan. 29. (Shannon Marvel / Forum News Service)

PIERRE, S.D. — A bill that would prohibit commercial surrogacy contracts and provide a penalty for facilitating a commercial surrogacy passed through the House Judiciary Committee on Wednesday, Jan. 29.

House Bill 1096 was introduced by state Rep. Jon Hansen, R-Dell Rapids, on Sunday.

According to the bill text, “any broker who knowingly engages in, advertises services for, offers payment of money or other consideration for, profits from, solicits a woman for, or otherwise assists or participates in commercial surrogacy” would be guilty of a Class 1 misdemeanor.

The bill would also make any commercial surrogacy contract, whether the two parties entered into it South Dakota or any other state, unenforceable and void in South Dakota.

Kelly Martinez, a South Dakota mother who has provided surrogacy services to three couples through commercial surrogacy agencies, testified in support of the bill.


Martinez recalled how she had to lie to French government officials about how she had an affair with the father of the child she was a surrogate for after the child was born.

She said she was saddled with medical bills that she had assumed would be paid for by the surrogacy agency or the biological parents.

Martinez said she is now a “broken woman who was exploited.”

Emilee Gehling, a cofounder of the commercial surrogacy agency, Dakota Surrogacy, testified in opposition to the bill, saying that by prohibiting commercial surrogacy the state would be taking away many families’ last hope for a biological child of their own.

“These folks go through so much, please don’t take away their last hope to become parents,” Gehling testified.

Gehling said parents and potential surrogates undergo a rigorous background check that involves a psychiatric evaluation to ensure that they are ready to become parents and to participate in the surrogate process.

The women who provide surrogate services are compensated for the “pain and suffering” of pregnancy, which includes a series of hormonal injections to make the surrogate mother’s womb as accepting of a foreign embryo as possible.

Gehling also clarified that Dakota Surrogacy does not compensate the surrogate mother for “selective reduction,” which is a term used to describe an abortion.


Gehling said the parents pay the surrogate mother who undergoes an abortion for the “pain of undergoing the procedure.”

The committee members passed the bill with a 11-1 vote after amending it to state that the bill does not apply to surrogacy contracts that parties have entered into within South Dakota or any other state as of July 1.

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