Request By:
Mr. Joe Ward
Courier Journal - Louisville Times
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear
This opinion is in response to your letter in which you inquire about the legality of "surrogate parenthood" in Kentucky. Specifically you have asked the following four questions:
1. Whether such a contract is legal in Kentucky.
2. Whether ordinary custody rules would apply in the event one or more of the parties to the agreement changed their minds while the pregnancy was in progress.
3. Whether surrogate transactions can be regulated by the state.
4. Whether the couple or the doctor could be held liable if the surrogate died or had her health impaired by the pregnancy.
The surrogate parenthood situation would typically arise when a couple wants children but the wife is not physically able to bear children. Another woman, the "surrogate mother" , is artificially inseminated with the sperm of the husband, who becomes the natural father. When the child is born and the paternity of the natural father has been established, the surrogate mother terminates her parental rights; the natural father receives the child, and his wife then adopts it.
In response to your first question, while several different approaches may be taken, in general some type of contract between the couple desiring the child and the surrogate mother would be necessary. However, regardless of the approach taken, because of the existence of at least three Kentucky statutes and a strong public policy against "baby-buying", it is the opinion of this office that any such contract is illegal and unerforceable such contract is illegal and unenforceable in Kentucky.
First, KRS 199.500(5) states:
"In no case shall an adoption be granted or a consent for adoption be held valid if such consent for adoption is given prior to the fifth day after the birth of the child."
The question arises whether, prior to the establishment of the surrogate arrangement, the couple can legally contract with the surrogate mother that for a stated consideration from the couple to the surrogate, the latter consents or will consent to the wife's adoption of the child. Inherent in the surrogate's promise is that she agrees to be artificially inseminated with the natural father's sperm and to carry the fetus to delivery.
Obviously, prior to the birth of the child the surrogate mother cannot give legally binding consent for adoption of the future child; such consent would violate KRS 199.500(5). The purpose of this statute is to give the mother time afer the birth of her child to consider whether or not to give it up for adoption. The addition of (5) to KRS 199.500 by the 1978 General Assembly indicates that the legislature as a matter of public policy intended that the mother not be rushed into making a decision to give consent for adoption; rather she should have at least five days to think it over.
Even if the contract might be written to provide that the surrogate mother would give consent in the future, five days after the child is born, in our opinion the contract would still be illegal. Even though such a contract might not fail for lack of consideration, it would not be enforced for reasons of public policy, for it is obvious that such a contract is merely a subterfuge to get around the language of KRS 199.500(5), by which the surrogate has in effect given consent before the pregnancy even has begun.
In order to avoid the difficulties of contracting for consent for adoption, an alterative method has been devised. This involves the formation of a contract for the termination of parental rights by the surrogate mother and her husband. Under such a contract, the termination agreement is made between the natural father and the surrogate mother (and her husband if she is married); the natural father's wife is not involved in this agreement. The surrogate agrees to be artificially inseminated with the semen of the natural father and to carry the fetus to delivery. The surrogate and her husband also agree that on the fifth day after the birth or as soon as possible afterward, they will institute proceedings to terminate their parental rights to the child. The natural father agrees to pay a stated moetary consideration and to pay medical and other and to pay medical and other expenses. It is our understanding that this is the method used by Surrogate Parenting Associates, Inc. of Louisville, Kentucky.
Termination of parental rights is differentiated from consent for adoption and is covered by different statutes; these are found at KRS 199.601-199.617. The penalty provision is found at KRS 199.990(5). The penalty for willful violation of the statutes or rules promulgated under them is a fine of not less than $20 nor more than $200 or imprisonment for not more than 30 days or both.
A parent may file a petition for the voluntary termination of his or her parental rights. KRS 199.601(1). However, according to KRS 199.601(2), "No petition may be filed under this chapter prior to five (5) days after the birth of a child".
Once again, the public policy behind such a provision is apparent. The legislature intends that the mother have time to consider her decision to terminate parental rights. Therefore, the same legal roadblock appears here as in the situation concerning consent for adoption. Even though such a contract might not fail for lack of consideration, in our opinion the courts of Kentucky would not enforce such contract or find such contract legal because of its obvious intent to circumvent KRS 199.601(2) and the public policy behind the five day waiting period.
While either of the above discussed statues is sufficient in and of itself to declare the surrogate parenting process illegal in Kentucky, in our opinion the strongest legal prohibition against surrogate parenting in Kentucky is found in the strong public policy against the buying and selling of held that as a matter of public policy children are not to be bought and sold; that is, monetary consideration other than for medical expenses is not to be made to the natural parents who have placed their children up for adoption. Barwin v. Reidy, 307 p.2d 175 (N.M. 1957); Matter of Adoption of a Child by I.T., 397 A.2d 341 (N.J. super. 1978). Self-seeking on the part of the natural mother is condemned. See In re Shirk's Estate, 350 P.2d 1 (Kan. 1960);
Reimche v. First National Bank of Nevada, 512 F.2d 187 (9th Cir. 1975).
In Kentucky, much of this public policy has been embodied in statute. KRS 199.590(2) states:
"No person, agency or institution not licensed by the department may charge a fee or accept remuneration for the procurement of any child for adoption purposes."
The penalty provision for violation of KRS 199.590 is found in KRS 199.990(4) and states that any person who violates the statute shall be fined not less than $500 nor more than $2,000 or imprisoned for not more than six months or both.
It is the opinion of this office that this statute precludes not only the surrogate mother from receiving payments for giving up her child for adoption but also includes all who are involved in the surrogate transaction, since each of them is involved "in the procurement of a child for adoption purposes". As pointed out in Pertrilli, Sec. 29.6, "It is . . . clear legislative policy that no one shall profit economically fro the adoption process".
Even though there is not a statutory equivalent to KRS 199.590(2) for termination of parental rights, there is the same public policy issue. In addition, even in the termination of rights approach, it is expected that the wife of the natural father will adopt the child. It is our opinion that the courts of this Commonwealth will not allow persons to receive monetary consideration for the procurement of a child, regardless of whether it is referred to as an adoption proceeding or as a termination of parental rights.
In addition, KRS 199.590(1) provides:
"No person, corporation or association shall advertise in any manner that it will receive children for the purpose of adoption nor shall any newspaper published in the commonwealth of Kentucky nor any other publication which is prepared, sold, or distributed in the commonwealth of Kentucky contain an advertisement which solicits children for adoption or solicits the custody of children."
The public policy behind these statutes if clear: The these statutes if clear: The Commonwealth of Kentucky does not condone the purchase and sale of children.
In your second question you ask about the consequences of a breach of contract by any of the parties. As we have just stated above, we do not believe there can be a legal and enforceable surrogate parenting contract in Kentucky under our present laws. This being the case, there is no reason to discuss the possible consequences of a breach of a contract we believe cannot legally exist.
We do note, however, there may be non-contractual remedies if parties to a surrogate arrangement back out. If the surrogate mother decides to keep the child, the natural father could institute a custody proceeding. The father would need to prove that he is the natural father of the child and that it would be in the best interest of thechild to be in his custody. Even though the natural father is not married to the mother of the child, he still has the right to seek custody of his child. The court in
Sweat v. Turner, 547 S.W.2d 435 (Ky. 1976), concluded that "a biological father of a child born out of wedlock has the right to petition and obtain custody of his child if he is suited to the trust, and if such is in the best interest of the child." Id. at 437. An unwed father has the same right to a custody hearing as do other parents. Stanley v. Illinois, parents.
Stanley v. Illinois, 405 U.S. 645 (1972).
KRS 403.270(1) states in part: "The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent". shall be given to each kparent". (Although found in the chapter on divorce, the custody statutes have been applied to non-divorce situations, e.g.
Sweat v. Turner, supra.) "So long as a father can produce reliable evidence that he is the father and is not a stranger to the child, and that the best interest of the child would result, the putative father may petition the circuit court for custody" .
Sweat v. Turner, supra, at 437.
If the natural father and his wife decide they do not want to have custody of or adopt the child, thus leaving the child with the surrogate mother, the surrogate has a remedy. She could institute a paternity action. KRS 406.021(1) states in part: "Paternity may be determined upon the complaint of the mother, child, person or agency substantially contributing to the support of the child." There is a presumption that the child born during lawful wedlock or within ten (10) months afterwards is a child of the husband and wife. KRS 406.011. But this presumption can be overcome. After the surrogate mother proves that the child was born out of wedlock, she could seek to impose liability on the natural father for the payment of certain expenses.
"The father of a child which is or may be born out of wedlock is liable to the same extent as the father of a child born in wedlock, whether or not the child is born alive, for the reasonable expense of the mother's pregnancy and confinement and for the education, necessary support and funeral expenses of the child. KRS 406.011.
In response to your third question, the state would have the authority to enact laws regulating surrogate transactions so long as such laws do not violate any of the parties' constitutional rights.
The final question you have presented concerns potential liability of the natural father or the physician if the surrogate dies or has her health impaired by the pregnancy.
We are aware that Surrogate Parenting Associates has dealt with this problem through several provisions in the "contract" between the natural father and the surrogate mother. The surrogate and her husband agree to assume all risks incident to the pregnancy, including the risk of death. The natural father buys a term insurance policy on the surrogate's life and agrees to pay for her medical expenses.
Barring any such provisions as noted above, the natural father would not appear to have any liabilities for injuries done to the surrogate mother because of her pregnancy, except if his paternity is shown, he could be liable for the "reasonable expense of the mother's pregnancy and confinement" pursuant to KRS 406.011. A negligence action would not be appropriate; it is unclear what the father's duty to the surrogate would be, and in any event, the surrogate would have entered into this arrangement would have entered into this arrangement knowing what risks she would be exposed to.
If any of the harm done to the surrogate mother was a result of some action by the physician, the surrogate could bring a medical malpractice action. Such a suit could be brought as a tort action in negligence or as a breach of a contract, express or implied.
Hackworth v. Hart, 474 S.W.2d 377 (Ky. 1977). If the surrogate dies, her family or her estate could bring a wrongful death action against the physician. The standard of care which the physician would be under is set out in
Blair v. Eblen, 461 S.W.2d 370 (Ky. 1970). The physician would be "under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances." Id. at 373. See also
Seaton v. Rosenberg, 573 S.W.2d 333 (Ky. 1978).
CONCLUSION
In conclusion, it is the opinion of this office that because of the existence of the above-mentioned Kentucky statutes and the strong public policy against the buying and selling of children, contracts involving surrogate parenthood are illegal and unenforceable in the Commonwealth of Kentucky.