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GESTATIONAL SURROGACY IN KENTUCKY

Gestational Surrogacy is permitted because no statute or published case law prohibits it.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes 
 
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Probably
  • Unmarried heterosexual couple using an egg donor or sperm donor: Depends on the court
  • Single parent using own egg/sperm: Yes
  • Same-sex couple using an egg donor or sperm donor: It will likely depend on whether the couple is married. If the couple is married, a court should issue the PBO as described (though new to KY). If the couple is unmarried, success would depend upon the court and the circumstances.


Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

  • Married heterosexual couple: Depends on the court
  • Unmarried heterosexual couple: Depends on the court
  • Single parent: Depends on the court
  • Same-sex couple: Depends on the court. A Kentucky court might recognize a court order regarding parentage, although Kentucky’s ban on same-sex marriage remains in place pending appeal.

What are the bases for venue?  The expected location of the hospital for delivery determines venue.If the Gestational Carrier delivers at a different hospital, then a post-birth petition for parentage may need to be filed.
 
Do results vary by venue?  Yes
 
If yes, are motions to waive venue accepted?  No
 
Is a hearing required to obtain a pre-birth order?
 Sometimes, but typically the parties are not required to attend.
 
Is a pre-birth order possible in Kentucky based on a Gestational Surrogate’s plan to deliver in Kentucky, if no party lives in Kentucky? Yes
 
Will Kentucky Vital Records honor a pre-birth order from another state?  Yes, generally.     
 
What is the typical time frame to obtain a birth certificate after delivery?
 30 business days, although they often can be expedited.

Same-Sex Couples

How are same-sex parents named on the final birth certificate?  Unclear
 
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?  Yes 

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Surrogate?
 Although Kentucky might amend the birth certificate pursuant to an out-of-state court order or judgment of adoption, without such an out-of-state judgment or further resolution regarding Kentucky’s position on same-sex marriage the possibility of naming a non-biological father is not likely.
 
Can the non-biological parent obtain a second parent adoption based solely on the fact that the child was born in Kentucky?  No
 
If no, will Kentucky Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate?
  Most likely

SECOND PARENT ADOPTIONS FOR KENTUCKY RESIDENTS

Note: This situation typically arises if the child is born outside of the state and the gestational carrier has been listed on the birth certificate. The parents then return to Kentucky to obtain a second parent adoption or stepparent adoption in Kentucky.

Will courts in Kentucky grant second parent adoptions or stepparent adoptions to heterosexual couples living in Kentucky?  Yes
Does the couple need to be married?  If the biological parent wants to retain parental rights, yes. Kentucky does not have the statutory framework for second parent adoptions.
 
Will courts in Kentucky grant second parent adoptions or stepparent adoptions to same-sex couples living in Kentucky?  Step-parent 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). Kentucky does not have the statutory framework for a second parent adoption; adoption severs the legal relationship between the child and the biological parent except in the case of a (heterosexual) step-parent adoption.
Does the couple need to be married?  Not applicable. Currently, Kentucky courts are not likely to recognize same-sex marriages and Kentucky does not have the statutory framework to accomplish a second parent adoption.

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  No

TRADITIONAL SURROGACY IN KENTUCKY

Traditional Surrogacy is prohibited by Ky.Rev.Stat.§199.590.

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
W. Waverley Townes
wtownes@mstwlegal.com
(502) 589-4404
 
Courtney Townes Good
ctownes@mstwlegal.com
(502) 589-4404

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