Kentucky Surrogacy Law
Summary: There is no statutory provision in Kentucky directly addressing the validity of surrogacy agreements, but a Kentucky Supreme Court case and an Attorney General opinion indicate that uncompensated agreements may be permissible. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.
Explanation: A 1980 opinion from the Kentucky Attorney General cautions against compensated surrogacy agreements. He concluded that “contracts involving surrogate parenthood are illegal and unenforceable in the Commonwealth,” basing his opinion on statutory provisions barring the sale of children and requiring voluntary consent for adoption, as well as “strong public policy against the buying and selling of children.”
Kentucky case law indicates approval for uncompensated surrogacy agreements, but it is unclear how a court would evaluate a surrogacy agreement involving money. In 1986, the Kentucky Attorney General sought to revoke the corporate charter of an agency that arranged surrogacy contracts. In the resulting lawsuit, the Attorney General argued that surrogacy contracts arranged by the company violated statutes that barred the sale of a child for purposes of adoption, as well as statutes that invalidated a mother’s consent to adoption prior to the birth of her child. However, the Kentucky Supreme Court held that traditional surrogacy agreements (in which the surrogate mother is the biological contributor of the egg) were fundamentally different than the practice of buying and selling children. The Court reasoned that laws against the purchase and sale of children are intended to protect individuals from overwhelming mothers with financial incentives. Surrogacy arrangements, on the other hand, are made prior to the conception of the child; thus, the surrogate mother is concerned not with the results of an unwanted pregnancy or the financial burden of raising a child, but rather with assisting an infertile couple. The Court found that it was not up to the judicial branch to “cut off [procreative] solutions offered by science.” However, they also held that surrogacy contracts are voidable (meaning they can be broken by one of the parties involved), rather than illegal.
There is no explicit prohibition in Kentucky on LGBT couples jointly adopting a child, nor is there an explicit prohibition on LGBT individuals adopting the child of their same-sex partner.
Citations: Op. Ky. Att'y Gen. No. OAG 81-18 (Jan. 26, 1981), 1981 Ky. AG LEXIS 399;
Surrogate Parenting Assocs. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209 (Ky. 1986).
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Last Updated: 9/9/2009