ON REVIEW FROM COURT OF APPEALS, #84-CA-136-MR, Franklin Circuit Court - #81-CI-0429.
Opinion OF THE COURT BY JUSTICE LEIBSON
In March 1981, the Attorney General, acting pursuant to KRS 271A.470, instituted proceedings against Surrogate Parenting Associates, Inc. (SPA), a Kentucky corporation, seeking to revoke SPA's corporate charter on grounds of abuse and misuse of its corporate powers detrimental to the interest and welfare of the state and its citizens. The suit alleges that SPA's surrogate parenting procedure is in violation of the following Kentucky statutes:
A) KRS 199.590(2), which prohibits sale, purchase or procurement for sale or purchase of "any child for the purpose of adoption":*fn1
B) KRS 199.601(2), which prohibits filing a petition for voluntary termination of parental rights "prior to five (5) days after the birth of a child": and
C) KRS 199.500(5), which specifies that a "consent for adoption" shall not "be held valid if such consent for adoption is given prior to the fifth day after the birth of the child."
The case was decided on the basis of a "Stipulation of Facts" setting out SPA's manner of doing business. Franklin Circuit Court held that SPA's activities were not illegal and not an abuse of corporate powers, and dismissed the complaint. The Court of Appeals reversed. Having accepted discretionary review, we reverse the Court of Appeals and affirm the judgment of Franklin Circuit Court.
SPA operates a medical clinic which assists infertile couples in obtaining a child biologically-related to the husband (the biological father) through artificial insemination of a "surrogate mother." The contract for conception and delivery is between the biological father and the surrogate mother. The arrangement contemplates that after delivery of the child the parental rights of the surrogate mother will be terminated, leaving the biological father with custody. The husband of the surrogate mother, if there is one, also agrees to give up any claim to the child. The paternity of the biological father is confirmed by new methods of genetic testing with almost complete scientific certainty.
The wife of the biological father, if there is one, is not party to these contractual arrangements. Of course, after entry of a judgment terminating the parental rights of the surrogate mother, the wife of the biological father can avail herself of the legal procedure available for adoption by a stepparent. KRS 199.470(4)(a).
Before being artificially inseminated, the prospective surrogate mother agrees with the prospective father that she will voluntarily terminate all parental rights subsequent to the birth, thereby extinguishing any rights she might have to participate in any subsequent adoptive proceeding by the biological father's wife.
The surrogate mother receives a fee from the biological father, part of which is paid before delivery of the child and the remainder of which is paid after entry of a judgment terminating the parental rights of the surrogate mother. In addition, the father assumes responsibility for medical, hospital, travel, laboratory and other necessary expenses of the pregnancy.
Each party must be represented by independent counsel, and the father's counsel is to prepare all agreements and documents in connection with the surrogate parenting process. The biological father pays the attorneys' fees.
SPA and its president, Richard M. Levin, M.D., are paid a fee by the biological father for selection and artificial insemination of the surrogate mother, for obstetrical care and testing during pregnancy, and for actual delivery.
The circuit court held that the fact that the father's wife might in the future adopt the child did not bring SPA's practice within the statutory prohibition against purchasing a child for the purpose of adoption. KRS 199.590(2).*fn2 The circuit court reasoned that there is no requirement that the biological father be married, no assurance that his wife, if any, will subsequently adopt the child, and that any adoption by the wife would be governed by the law of the state in which the mother resides, which might not be Kentucky. It cited Baby Boy Van Wey v. Christine Van Wey, Ky., 656 S.W.2d 731 (1983), which holds that expansion or contraction of termination of parental rights statutes and/or adoption statutes are not matters for the courts to decide, but matters for the legislature.
The Court of Appeals reversed, deciding that the circuit court opinion rested on "an improper conceptual framework." In its opinion the "termination of parental rights by the surrogate mother is simply a necessary predicate to a subsequent adoption by the infertile wife," and "SPA's procedures contravene the letter and policy underlying KRS 199.590(2) prohibiting the purchase and sale of children."
The Court of Appeals was of the opinion that "the infertile wife the biological father is the sine qua non of this procedure":
"Artful draftsmanship designed to nominally include only the biological father, the surrogate, and the surrogate's husband so as to avoid the purview of statutes such as KRS 199.590(2) must fail."
The Court of Appeals concludes that its decision to prohibit the surrogate parenting procedure does not "legislate from the bench," because "the legislature has spoken."
The question for us to decide is one of statutory interpretation: Has the legislature spoken? The fundamental question is whether SPA's involvement in the surrogate parenting procedure should be construed as participation in the buying and selling of babies as prohibited by KRS 199.590(2). We conclude that it does not, that there are fundamental differences between the surrogate parenting procedure in which SPA participates and the buying and selling of children as prohibited by KRS 199.590(2) which place this surrogate parenting procedure beyond the purview of present legislation.
There is no doubt but that KRS 199.590 is intended to keep baby brokers from overwhelming an expectant mother or the parents of a child with financial inducements to part with the child. But the central fact in the surrogate parenting procedure is that the agreement to bear the child is entered into before conception. The essential considerations for the surrogate mother when she agrees to the surrogate parenting procedure are not avoiding the consequences of an unwanted pregnancy or fear of the financial burden of child rearing. On the contrary, the essential consideration is to assist a person or couple who desperately want a child but are unable to conceive one in the customary manner to achieve a biologically related offspring. The problem is caused by the wife's infertility. The problem is solved by artificial insemination. The process is not biologically different from the reverse situation where the husband is infertile and the wife conceives by artificial insemination.
No one suggests that where the husband is infertile and conception is induced by artificial insemination of the wife that the participants involved, the biological father, the physicians who care for the mother and deliver the child, or the attorneys who arranged the procedure, have violated the statutes now in place. Although this is tampering with nature in the same manner as the surrogate parenting procedure here involved, we recognize "[t]he decision whether or not to beget or bear a child is at the very heart . ...