Inalienable Responsibility: Surrogate Parenting Contracts and How Section Fifty-Nine, Ninth, Could Help Kentucky Split the Baby

Abstract

This paper explores the legal landscape for paid surrogacy contracts nationally, with an emphasis on the Commonwealth of Kentucky. “Traditional surrogacy” is defined as the practice of a female allowing herself — and her own eggs — to be inseminated with the sperm of the father while agreeing to terminate her parental rights after giving birth. Later, this will be distinguished from “gestational surrogacy,” wherein both the sperm and the eggs are donated from others. Ultimately the aim is to reinforce the argument that traditional paid surrogacy contracts should be legislated as void against public policy, while suggesting legislative reforms to make gestational surrogacy less problematic. Research suggests two concrete legal reforms: 1) Ensuring ex ante clarification of the various parties’ parental rights with 2) a multi-party parenting arrangement as the default model. Thus, ideally, the children can expect the maximum support under the circumstances, similar to what many modern post-divorce families end up with: i.e., shared parenting with the involvement and shared legal and fiscal responsibility of all parents, step-parents, and/or legal guardians. In any event, such reforms lead to a more solid basis upon which the courts can ultimately adjudicate any contractual disputes. Also, as a hypothetical, this paper addresses how Kentucky’s constitutional proscription of same-sex marriages and Section 59’s prohibition of special legislation for adoption could affect a same-sex couple’s gestational surrogacy contract.