AN ACT relating to commercial surrogacy.

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AN ACT relating to commercial surrogacy. 1
WHEREAS, the Commonwealth of Kentucky has a compelling interest in 2
protecting the dignity, health, and safety of women and children and preventing the 3
commodification of human life; and 4
WHEREAS, commercial surrogacy treats children and the reproductive capacity of 5
women as objects of contractual exchange, reducing pregnancy and birth to market 6
transactions; and 7
WHEREAS, commercial surrogacy has been linked nationally and internationally 8
to the exploitation of economically vulnerable women and practices consistent with 9
human trafficking, coercion, and undue inducement; and 10
WHEREAS, the United States lacks comprehensive federal regulation governing 11
commercial surrogacy, resulting in inconsistent state laws and minimal protections for 12
women and children; and 13
WHEREAS, numerous nations prohibit commercial surrogacy, recognizing that 14
financial inducement for pregnancy creates inherent risks of exploitation and abuse; and 15
WHEREAS, Kentucky has an obligation to prevent out -of-state and international 16
surrogacy industries from targeting Kentucky women and families through advertising, 17
recruitment, or contractual arrangements; and 18
WHEREAS, the General Assembly finds that prohibiting commercial surrogacy 19
while recognizing strictly defined altruistic surrogacy advances the best interests of 20
women, children, and families; 21
NOW, THEREFORE, 22
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 23
SECTION 1. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 24
READ AS FOLLOWS: 25
As used in Sections 1 to 3 of this Act: 26
(1) "Altruistic surrogacy" means any contract, agreement, or other arrangement in 27
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which a woman agrees to become pregnant or carry and deliver a child for 1
another person or persons without compensation; 2
(2) "Commercial surrogacy" means any contract, agreement, or other arrangement 3
in which a woman agrees to become pregnant or carry and deliver a child for 4
another person or persons in exchange for compensation; 5
(3) "Compensation": 6
(a) Means a payment of money, objects, services, or anything else having 7
monetary value; and 8
(b) Does not include reimbursement or payment of actual expenses incurred 9
that are directly related to the pregnancy including reasonable charges and 10
fees for: 11
1. Hospital or medical services for the birth of the child; 12
2. Medical care, including prenatal care, and other reasonable birth -13
related expenses for the mother or child; or 14
3. Payment of a judicially sanctioned settlement or judgment rendered in 15
favor of the woman or her heirs as a result of her death, loss of 16
reproductive organs or capability, or any other health complications 17
caused by in utero embryo transfer, pregnancy, or resulting childbirth, 18
miscarriage, or termination of pregnancy; and 19
(4) "In utero embryo transfer" means the medical proc edure in which an embryo is 20
transferred into the uterus of a woman. 21
SECTION 2. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 22
READ AS FOLLOWS: 23
(1) It shall be unlawful for any person, corporation, association, agency, in stitution, 24
intermediary, or organization to: 25
(a) Operate, facilitate, advertise, broker, or arrange commercial surrogacy 26
services, or enter into a commercial surrogacy agreement within this 27
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Commonwealth or with a resident of this Commonwealth; 1
(b) Solicit, recruit, or induce a resident of this Commonwealth to participate in 2
commercial surrogacy or enter into a commercial surrogacy agreement; 3
(c) Attempt to enforce a commercial surrogacy agreement to which a resident 4
of this Commonwealth is a party; or 5
(d) Conduct business in this Commonwealth, electronically or otherwise, for 6
the purpose of facilitating commercial surrogacy in this Commonwealth. 7
(2) This section shall not apply to: 8
(a) An altruistic surrogacy; 9
(b) A woman acting as a surrogate; or 10
(c) A child born as a result of a prohibited commercial surrogacy arrangement. 11
SECTION 3. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 12
READ AS FOLLOWS: 13
Any commercial surrogacy contract, agreement, or other arrangement entered i nto by 14
a resident of this Commonwealth shall be void and unenforceable as against public 15
policy whether executed in this Commonwealth or any other state or territory of the 16
United States. 17
Section 4. KRS 199.590 is amended to read as follows: 18
(1) (a) A person, corporation, or association shall not advertise in any manner that it 19
will receive children for the purpose of adoption. 20
(b) A newspaper published in the Commonwealth of Kentucky or any othe r 21
publication which is prepared, sold, or distributed in the Commonwealth of 22
Kentucky shall not contain an advertisement that[which] solicits children for 23
adoption or solicits the custody of children. 24
(2) (a) A person, agency, institution, or intermediary shall not sell ,[ or] purchase, or 25
procure for sale or purchase , any child for the purpose of adoption or any 26
other purpose, including termination of parental rights. 27
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(b) This section shall not: 1
1. Prohibit a child -placing agency from charging a fee for ad option 2
services; or[. This section shall not ] 3
2. Be construed to prohibit in vitro fertilization. 4
(c) As used in [For purposes of] this section, "in vitro fertilization" means the 5
process by which an egg is removed from a woman, and fertilized in a 6
receptacle by the sperm of the husband of the woman in whose womb the 7
fertilized egg will [thereafter ]be implanted. 8
(3) (a) A[No] person, association, or organization, other than the cabinet or a child -9
placing institution or agency , shall not place a child or act as intermediary in 10
the placement of a child for adoption or otherwise, except in the home of a 11
stepparent, grandparent, sister, brother, aunt, or uncle, or upon written 12
approval of the secretary. 13
(b) This subsection shall not be construed to: 14
1. Limit the cabinet [ for Health and Family Services] in carrying out its 15
public assistance under Title IV -A of the Federal Social Security Act 16
program in accordance with KRS Chapter 205 ; or [. This section shall 17
not be construed to ] 18
2. Prohibit private independent adoption or the right to seek legal services 19
relating to a private independent adoption. 20
(4) (a) A person, agency, institution, or intermediary shall not: 21
1. Be a party to a contract or agreement which would compensate a woman 22
for her a rtificial insemination and subsequent termination of parental 23
rights to a child born as a result of that artificial insemination for the 24
purpose of adoption; or [. A person, agency, institution, or intermediary 25
shall not ] 26
2. Receive compensation for the fa cilitation of contracts or agreements as 27
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proscribed by this subsection. 1
(b) Contracts or agreements entered into in violation of this subsection shall be 2
void. 3
(5) (a) A person, organization, group, agency, or any legal entity, except a child -4
placing agen cy, shall not accept any fee for bringing the adoptive parents 5
together with the child to be adopted or the biological parents of the child to 6
be adopted. 7
(b) This section shall not interfere with the legitimate practice of law by an 8
attorney. 9
(6) (a) In every adoption proceeding, the expenses paid, including but not limited to 10
any fees for legal services, placement services, and expenses of the biological 11
parent or parents, by the prospective adoptive parents for any purpose related 12
to the adoption shall be submitted to the court and[,] supported by an 13
affidavit, setting forth in detail a listing of expenses for the court's approval or 14
modification. 15
(b) In the event the court modifies the expense request as it relates to legal fees 16
and legal expenses only, the attorney for the adoptive parents shall not have 17
any claim against the adoptive parents for the amount not approved. 18
Section 5. KRS 199.990 is amended to read as follows: 19
(1) (a) Any person who violates any of the p rovisions of KRS 199.430, 199.470, 20
199.473, 199.570, 199.572, [ and] 199.590 except subsections[subsection] (2) 21
and (4), or 199.640 to 199.670, or any [ rule or] regulation under those[such] 22
sections, the violation of which is made unlawful , shall be fined n ot less than 23
five hundred dollars ($500) nor more than two thousand dollars ($2,000) or 24
imprisoned for not more than six (6) months, or both; and[.] 25
(b) Each day the[such] violation continues shall constitute a separate offense. 26
(2) Any person who willfully violates any other provision[of the provisions] of KRS 27
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199.420 to 199.670 , or any[ rule or] regulation under those sections [thereunder], 1
the violation of which is made unlawful under the terms of those sections, and for 2
which no ot her penalty is prescribed in those sections [,] or in any other applicable 3
statute, shall be fined not less than one hundred dollars ($100) nor more than two 4
hundred dollars ($200) or imprisoned for not more than thirty (30) days, or both. 5
(3) (a) 1. Any vi olation of the regulations, standards, or requirements of the 6
cabinet under[ the provisions of] KRS 199.896 that poses an immediate 7
threat to the health, safety, or welfare of any child served by the child -8
care center shall be subject to a civil penalty of not[no] more than one 9
thousand dollars ($1,000) for each occurrence; and[. ] 10
2. Treble penalties shall be assessed for two (2) or more violations within 11
twelve (12) months. 12
(b) 1. All money collected as a result of civil penalties assessed under [ the 13
provisions of] KRS 199.896 shall be paid into the State Treasury and 14
credited to a s pecial fund for the purpose of the Early Childhood 15
Scholarship Program created in accordance with KRS 164.518; and[.] 16
2. The balance of the fund shall not lapse to the general fund at the end of 17
each biennium. 18
(4) A person who commits a violation of the re gulations, standards, or requirements of 19
the cabinet under [ the provisions of] KRS 199.896 shall be fined not less than one 20
thousand dollars ($1,000) or imprisoned for not more than twelve (12) months, or 21
be fined and imprisoned[,] at the discretion of the court. 22
(5) Any person who violates [ any of the provisions of] KRS 199.590(2) or (4) shall be 23
guilty of a Class D felony. 24
(6) Any person who knowingly or intentionally registers false information under KRS 25
199.503(4) shall be fined not more than one thousa nd dollars ($1,000) or 26
imprisoned for not more than twelve (12) months, or be fined and imprisoned [,] at 27
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the discretion of the court. 1
(7) Any person who knowingly or intentionally releases or requests confidential 2
information in violation of KRS 199.503(8) or (9) or in violation of KRS 199.505 3
shall be fined not more than one thousand dollars ($1,000) or imprisoned for not 4
more than twelve (12) months, or be fined and imprisoned [,] at the discretion of the 5
court. It is a defense under this subsection if the cabinet releases confidential 6
information while acting in good faith and with reasonable diligence. 7
(8) (a) Any person who intentionally registers false information under KRS 199.881 8
to 199.888 with the cabinet in pursuit of the benefits of this program s hall be 9
subject to a civil penalty of not[no] more than five hundred dollars ($500) per 10
violation; and[.] 11
(b) All money collected as a result of penalties assessed under KRS 199.881 to 12
199.888 shall be paid into the State Treasury and credited to the Emplo yee 13
Child Care Assistance Partnership fund. 14
(9) (a) Any person, corporation, association, agency, institution, intermediary, or 15
organization who violates subsection (1) of Section 2 of this Act shall be 16
guilty of a Class D felony for the first offense and a Class C felony for the 17
second and each subsequent offense. 18
(b) In addition to any criminal penalty imposed under paragraph (a) of this 19
subsection, any person, corporation, association, agency, institution, 20
intermediary, or organization who violates subse ction (1) of Section 2 of 21
this Act shall be subject to a civil penalty not to exceed the sum of ten 22
thousand dollars ($10,000) for each violation. When the violation is of a 23
continuing nature, each day upon which a violation occurs shall be deemed 24
a separate offense. 25
(c) A conviction of a corporation, association, agency, institution, intermediary, 26
or organization of violating subsection (1) of Section 2 of this Act shall 27
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operate to forfeit its charter or right to do business in this Commonwealth. 1
(d) The Attorney General may initiate proceedings in any Circuit Court in this 2
Commonwealth to enforce the provisions of paragraph (b) of this subsection 3
and to enjoin further violations. It shall not be required that actual damages 4
be alleged or proved to recover injunctive relief or attorney's fees and costs. 5
(e) This subsection shall not be construed to limit or restrict the powers, duties, 6
remedies, or penalties available to the Attorney General, the 7
Commonwealth, or any other person under any other statutory au thority or 8
common law. 9
Section 6. If any provision of this Act or the application thereof to any person 10
or circumstance is held invalid, the invalidity shall not affect other provisions or 11
applications of the Act that ca n be given effect without the invalid provision or 12
application, and to this end the provisions of this Act are severable. 13
Section 7. The penalties under Section 5 of this Act shall apply to all contracts 14
or agreements entered into on or after the effective date of this Act. 15