GESTATIONAL SURROGACY LAW KENTUCKY
Surrogacy in Kentucky is still a rather new family-building process and area of law. There are no statutes or published case law specifically permitting or prohibiting surrogacy so it is an accepted practice in this state.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Kentucky, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Kentucky.
Is Gestational Surrogacy Legal in Kentucky?
Yes. There are no statutes or published case law permitting or prohibiting gestational surrogacy, so it is considered legal and an accepted practice in the state
Is Traditional Surrogacy Legal in Kentucky?
Compensated traditional surrogacy is specifically prohibited by statute. However, uncompensated traditional surrogacy is permitted.
Is Compensated Surrogacy Legal in Kentucky?
Yes. Compensated gestational surrogacy is legal in Kentucky. There are no legal restrictions on the base compensation that a surrogate can receive in a Kentucky surrogacy; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a Kentucky Surrogacy Contract
Because there are no surrogacy laws in Kentucky, there are no specific legal regulations that must be followed when drafting a Kentucky surrogacy contract. However, intended parents and their surrogate must be represented by separate surrogacy attorneys to ensure that all their rights and interests are appropriately protected. These attorneys will negotiate a contract that addresses at least the following:
- Rights and responsibilities of each party
- Potential risks and liabilities of each party
- Surrogate compensation and other financial information
- Contact expectations before, during and after the surrogacy process
- Plans for the hospital stay
- Steps for establishing the intended parents’ parental rights
- And more
Once this contract is finalized and signed by both parties, the medical process of surrogacy can begin.
Determining Legal Parentage in Kentucky
Pre-birth parentage orders will usually be granted to intended parents who are married when at least one shares a genetic relationship with the child, and to single intended parents who are genetically related to the child.
Unmarried couples, regardless of genetic relationship to the child, as well as non-genetic intended parents will typically be required to complete a post-birth adoption in order to secure their parental rights.
The availability of pre-birth parentage orders will always depend upon the court and judge overseeing the surrogacy case. Certain courts will more readily grant parentage orders than other courts.
Same-Sex Surrogacy in Kentucky
Q: Is Same-Sex Surrogacy Legal in Kentucky?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Kentucky?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Kentucky?
A: Kentucky does not have a statutory rule on this. As a result, there is not a specific set of guidelines for when a judge may uphold the validity of a surrogacy arrangement. However, since a surrogacy contract is like any other legal contract, it is presumed that the contract would be enforceable. It is important to work with an experienced surrogate attorney to guide you through this process.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Kentucky?
A: No. International intended parents will follow the same surrogacy process as domestic intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: Unmarried couples, regardless of genetic relationship to the child, as well as non-genetic intended parents who are married will typically be required to complete a post-birth adoption in order to secure their parental rights.
Q: Does Kentucky Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Kentucky does not have the statutory framework for second-parent adoptions.
Kentucky courts will grant stepparent adoptions to married heterosexual couples living in Kentucky. Stepparent adoptions are likely to be unavailable to same-sex residents of Kentucky because Kentucky courts would have to recognize the underlying same-sex marriage (currently prohibited by state Constitution).
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: There is no statute or published case law that addresses this situation. If intended parents use a donor egg, sperm or embryo, they may or may not be able to obtain a pre-birth order for both members of the couple. An intended parent who is not genetically related to their child born via surrogacy in Kentucky may need to complete an adoption after birth to establish their parental rights. This will depend on the judge overseeing the surrogacy case.
REPRODUCTIVE LAW PRACTITIONERS
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