South Dakota law makes certain unauthorized fertility material use a felony

A licensed health care provider commits a Class 5 felony by knowingly causing donor material to be used without the patient’s written consent, or intentionally using the provider’s own material without that consent. This applies to licensed providers performing assisted reproduction procedures, such as in vitro fertilization or insemination. Agreeing to an anonymous donor does not excuse a violation. The time limit for prosecuting the crime begins when the violation is discovered and reported to law enforcement or another government agency.

Eligible people may sue a licensed provider for performing an assisted reproduction procedure in violation of the criminal provision. Patients, spouses, intended parents, and children have a separate claim for each child born. A donor has a separate claim for each patient who received a procedure using the donor’s material. Eligible people are the patient who gives birth, that patient’s surviving spouse, an intended parent, the child born, and a donor whose material was used without consent or against the donor’s consent. A lawsuit may proceed whether or not the provider is charged or convicted. A person who wins may receive $10,000 in set damages, other compensatory and punitive damages, and reasonable attorney’s fees. The first four groups may also recover procedure costs. A lawsuit must begin within five years after the child turns 18, or within five years after the earliest listed discovery or admission event.