
    SURROGATE PARENTING ASSOCIATES, INC., Movant, v. COMMONWEALTH of Kentucky, ex rel., David ARMSTRONG, Attorney General, Respondent.
    Supreme Court of Kentucky
    Feb. 6, 1986.
    
      David E. Roseberry, Louisville, Joseph J. Leary, Frankfort, for movant.
    David Armstrong, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for respondent.
   LEIBSON, Justice.

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”;

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). 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 VanWey v. Christine VanWey, 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 of 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 ... of constitutionally protected choices.” Carey v. Population Services, Int’l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).

When KRS 199.590 was amended in 1984 the following language was added:

“Nothing in this section shall be construed to prohibit in vitro fertilization. For purposes of this section ‘in vitro fertilization’ means the process whereby an egg is removed from a woman, then fertilized in a receptacle by the sperm of the husband of the woman in whose womb the fertilized egg will thereafter be implanted.”

The Attorney General contends that by including this “in vitro” fertilization procedure in the statute while leaving out the surrogate parenting procedure presently under consideration, the legislature was legislating against surrogate parenting. We do not divine any such hidden meanings. All we can derive from this language is that the legislature has expressed itself about one procedure for medically assisted conception while remaining silent on others. To this extent the legislature puts its stamp of approval on tampering with nature in the interest of assisting a childless couple to conceive. The “in vitro” fertilization procedure sanctioned by the statute and the surrogate parenting procedure as described in the Stipulation of Facts are similar in that both enable a childless couple to have a baby biologically related to one of them when they could not do so otherwise. The fact that the statute now expressly sanctions one way of doing this does not rule out other ways by implication. In an area so fundamental as medically assisting a childless couple to have a child, such a prohibition should not be implied.

As stated in the circuit court opinion: “Because of the existence of a legal relationship between the father and the child, any dealing between the father and the surrogate mother in regard to the child cannot properly be characterized as an adoption.”

As between the biological father, who is both contractually acknowledged and scientifically confirmed, and the biological mother, if there is no subsequent termination of the mother’s parental rights, the only legal question between the parties would relate to which biological parent should have custody. KRS 403.270 prepares for a resolution of this dilemma by stating:

“The court shall determine custody in accordance with the best interest of the child and equal consideration shall be given to each parent.”

SPA has freely acknowledged that the initial contractual arrangements regarding the mother’s surrender of custody and termination of parental rights are voidable. The surrogate mother’s consent given before five days following birth of the baby is no more legally binding than the decision of an unwed mother during her pregnancy that she will put her baby up for adoption. The five days’ consent feature in the termination of parental rights statute (KRS 199.-601(2)) and in the consent to adoption statute (KRS 199.500(5)) take precedence over the parties’ contractual commitments, meaning that the surrogate mother is free to change her mind. The policy of the voluntary termination statute and the consent to adoption statute is to preserve to the mother her right of choice regardless of decisions made before the birth of the child. This policy is not violated by the existence of the contractual arrangements previously made. The policy of these statutes is carried out because the law gives the mother the opportunity to reconsider her decision to fulfill the role as surrogate mother and refuse to perform the voluntary termination procedure. Should she elect to do so, the situation would be no different than had she never entered into the procedure. She would be in the same position vis-a-vis the child and the biological father as any other mother with a child born out of wedlock. The parental rights and obligations between the biological father and mother, and the obligations they owe to the child, would then be the rights and obligations imposed by pertinent statutes rather than the obligations imposed by the contract now vitiated.

Kentucky has taken the position that custody contracts are voidable, not illegal and void. In Edleson v. Edleson, 179 Ky. 300, 200 S.W. 625 (1918), we held that, while the court is not compelled to enforce such a contract because the statutory rights are preemptive, such a contract is not per se illegal. The surrogate mother who changes her mind before going through with her contractual obligation stands in the same legal position as a woman who conceives without benefit of contractual obligations. She has forfeited her rights to whatever fees the contract provided, but both the mother, child and biological father now have the statutory rights and obligations as exist in the absence of contract.

The advances of biomedical science have carried us forward, willingly or otherwise into a new era of genetics.

If there are social and ethical problems in the solutions science offers, these are problems of public policy that belong in the legislative domain, not in the judicial, under our constitutional doctrine of separation of powers. Ky. Const., Sections 27 and 28. It is only when a proposed solution violates individual constitutional rights that the courts have a place in the controversy.

But that is not the question here because the threshold question is whether the legislation on the books declares the procedure impermissible. Short of such legislation it is not for the courts to cut off solutions offered by science.

In Bedinger v. Graybill’s Executor & Trustee, Ky., 302 S.W.2d 594 (1957), we considered and rejected a request that the court, under the guise of legislative “interpretation,” hold that an adoption by a husband of his wife, making her his heir at law, violated Kentucky “public policy” notwithstanding statutory language which addressed the subject and failed to forbid the arrangement challenged. We stated:

“The courts are bound by statutory law as written and cannot write into it an exception that the legislature did not make.” 302 S.W.2d at 599.

We have consistently held that our Kentucky Constitution empowers the legislative branch, but not the judicial branch, of government to articulate public policy regarding health and welfare. Wooden v. Goheen, Ky., 255 S.W.2d 1000 (1953) and Walters v. Bindner, Ky., 435 S.W.2d 464 (1968). The questions of whether and how new medical services of the type offered by SPA offend public policy and should be prohibited by legislation are addressed to the legislature, not the courts.

The courts should not shrink from the benefits to be derived from science in solving these problems simply because they may lead to legal complications. The legal complications are not insolvable. Indeed, we have no reason to believe that the surrogate parenting procedure in which SPA participates will not, in most instances, proceed routinely to the conclusion desired by all of the parties at the outset — a woman who can bear children assisting a childless couple to fulfill their desire for a biologically-related child.

We agree with the trial court that if there is a judgment to be made outlawing such a procedure, it is a matter for the legislature. The surrogate parenting procedure as outlined in the Stipulation of Facts is not foreclosed by legislation now on the books. The judgment of the Court of Appeals is reversed. The judgment of the trial court is affirmed.

STEPHENS, C.J., and AKER, GANT and LEIBSON, JJ., concur.

STEPHENSON, J., concurs in results only.

VANCE and WINTERSHEIMER, JJ., dissent by separate opinions.

VANCE, Justice,

dissenting.

Respectfully, I dissent.

When the activities of Surrogate Parenting Associates are placed in their best light by the majority, the fact remains that its primary purpose is to locate women who will readily, for a price, allow themselves to be used as human incubators and who are willing to sell, for a price, all of their parental rights in a child thus born.

The parties stipulate that a surrogate mother is paid a fee, part of which is paid to the mother before delivery of the child, and the rest to be paid after she carries the child to term and upon entry of a judgment terminating her parental rights. In other words, a portion of the fee is paid in advance for the use of her body as an incubator, but a portion of the payment is withheld and is not paid until her living child is delivered unto the purchaser, along with the equivalent of a bill of sale, or quit-claim deed, to wit — the judgment terminating her parental rights. How can it be denied that this last portion of the payment is in fact a payment for the baby, because if the baby is not delivered and parental rights not surrendered, the last part of the fee need not be paid.

Whether or not the transaction is for the purpose of adoption or otherwise is immaterial. It violates K.R.S. 199.590 in either event.

K.R.S. 199.590(2) provides:

“No person, agency, institution or intermediary may sell or purchase or procure for sale or purchase any child for the purpose of adoption or any other purpose, including termination of parental rights_” (Emphasis added.)

It is stipulated that Surrogate Parenting Associates is an intermediary which offers to assist infertile couples in obtaining a child biologically related to the father through the process of artificial insemination of a surrogate mother. I view the subsequent delivery of the child together with an agreed judgment terminating the parental rights of the natural mother in exchange for a monetary consideration to be no less than the sale of a child. It cannot be gainsaid that Surrogate Parenting Associates is an intermediary in this process, and thus it violates the statute. The revocation of its Charter is therefore appropriate.

I would affirm the Court of Appeals.

WINTERSHEIMER, Justice,

dissenting.

I respectfully dissent from the majority opinion because the legislative intent to prohibit the buying and selling of children is abundantly clear in regard to KRS 199.-590(2). I fully agree with the dissent written by Justice Vance.

In my view, the people of the Commonwealth of Kentucky have not abdicated their sovereignty to a self-appointed group of scientists-kings. The tolerance of the many can easily lead to the tyranny of a few. The attractiveness of assistance to childless couples should not be a cosmetic facade for unnecessary tampering with human procreation.

Animals are reproduced; human beings are procreated.

The procedure endorsed by the majority is nothing more than a commercial transaction in which a surrogate mother receives money in exchange for terminating her natural and biological rights in the child. This permits the infant to be adopted by the infertile wife and apparent biological father.

The apparent biological father is obviously not adopting his own child but actually purchasing the right to have the child adopted by his own infertile wife. Regardless of the good intentions that may give rise to such a practice, the commercialization of this type of personal problem is exactly what KRS 199.590(2) is intended to prevent.

The Kentucky legislature has not been silent on the public policy question of surrogate parenting. When the General Assembly was given the opportunity to authorize surrogate parenting in Kentucky, that body refused to adopt language which would legalize such a procedure. During the 1984 General Assembly, House Bill 421 was adopted so as to permit certain forms of genetic engineering. A similar Senate amendment to the original statute would have provided for surrogate parenting. The legislature rejected surrogate parenting. It is totally proper to interpret this recent legislative activity and history as a clear indication that surrogate parenting violates the current statute and its policy against the unauthorized purchase and sale of children for adoption by this type of processing. Frequently we have heard complaints of an absence of legislative history. In this situation, we have the opportunity to review the legislative record and the majority chooses to ignore it.

It is curious to note that the majority states that “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 that child.” However, the majority apparently loses its judicial insight into the proper interpretation of the activities of the General Assembly when it comes to surrogate parenting.

Surrogate parenting obviously contemplates adoption by the infertile wife of the apparent biological father. The infertile wife is prominently included in all definitions of surrogate parenting which we have examined.

The corporate charter of this entity acknowledges her in its statement of purpose which is to assist infertile couples in obtaining a biologically related child. Once the obvious certainty of the infertile wife’s presence is recognized, it cannot be logically denied that the certainty of adoption must logically follow. The termination of parental rights by the surrogate mother is a necessary predicate to a subsequent adoption by the infertile wife. The apparent biological father and/or husband is only an intermediary who acquires and assists the transfer of the parental rights of the two females involved.

The contracts employed in this case go to great length to avoid mentioning adoption or including any specific reference to the infertile wife. As noted by the Court of Appeals, this does not prevent a reviewing court from recognizing the true nature of the commercial transaction involved. The purpose of the language of the contract is merely to avoid KRS 199.590(2). It is an obvious subterfuge.

Adoption made possible through paid termination of a surrogate’s parental rights, is an essential part of the surrogating procedure. Accordingly it is in direct contradiction to the policy and the expressed language of KRS 199.590(2), which prohibits the purchase and sale of children.

I am not at all unmindful of the precious gift of life demonstrated by the birth of a child to infertile couples. Certainly this is a most attractive prospect. However, it still remains that the end does not justify the means.

The fact that a woman’s infertility can be cured is a matter that evokes serious questions of medical and public policy. The prospect of host-mothers with wombs for hire is immediately possible. There are already sperm banks and egg banks could be next. It is entirely possible, as we have seen in this case, that reproduction can be arranged by contract' and financial payment. In my view the consequences which could arise from the opening of the human uterus to commercial medical technology does not contribute to the emancipation of women. In my opinion, the safeguarding of marriage and the family is essential to the continuation of human society as we know it. The possibility of exploitation of women as surrogate mothers is totally undesirable.

There is no question that our age is one • of expanding biomedical technology. In every era people believe they are at a “turning point” on the threshold of new development. There are some moments in history when such an impression is justified. The law must be stable, yet it cannot stand still. Our legal system is workable only because it has been continually restructured to meet society’s changing needs. The Brave New World of Aldous Huxley seems to be upon us. The intrusion of government into the private lives of individuals forecast in George Orwell’s 1984, seems to be here.

I certainly agree that the legal system should not avoid the necessary legal problems that arise from the advances of sciences.

I agree with the majority that decisions relating to the outlawing of surrogate parenting are better left with the legislature. In my view the legislature has already indicated their displeasure with the type of commercial transaction involved in this case.

Our consideration of public policy in this regard should include the possible exploitation of financially-needy women. Although there may be some altruistic women who will volunteer as surrogate mothers, the greater prospect is that monetary payment will have to be made to surrogates. The offer of financial payment will undoubtedly persuade financially needy women to sell their reproductive faculties for the benefit of those who can pay. The price at which a woman will sell her reproductive capacity may depend on her financial status.

Another public policy factor relating to surrogate mothering is the long-standing interest in society for the preservation of the traditional family. The family unit has been under severe attack from almost every element of our modern commercial society, yet it continues as the bedrock of the world as we know it. Any practice which threatens the stability of the family unit is a direct threat to society’s stability. The question is whether the introduction of a third contracting party, the surrogate mother, substantially deviates from and threatens the traditional family concept. I believe that the legislature has already expressed their opinion that surrogate mothering tends to violate public policy. See Surrogate Mothering; Medical Reality in a Legal Vacuum, Journal of Legislation, Vol. 8, No. 1, Winter (1981), for an extensive discussion of the entire subject.

Certainly important practical results from the growing ability to scientifically control biological reproduction demands legislative attention.

The decision to become pregnant parallels the fundamental right of reproductive privacy. The adopting couple’s claimed right of reproductive privacy does not appear to be sufficiently similar. The emphasis in reproductive privacy is on the right of the individual to control his or her reproductive faculties. To give a second party the right to control another person’s reproductive capacity would appear to be contradictory. Although a surrogate mother’s decision to become pregnant is a fundamental right, another party would not have the right to contract for the control of her pregnancy. The principle case that addresses surrogate mothering is Doe v. Attorney General, 106 Mich.App. 169, 307 N.W.2d 438 (1981), lv.den., 414 Mich. 875 (1982), cert. den. 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983).

The majority opinion is based on an incorrect interpretation of the statute which does not correctly reflect the true legislative intent, and it does not properly express the general public policy as enunciated by the legislature.

I would affirm the decision of the Court of Appeals. 
      
      . This statute was changed to this present form in 1984. Since the question to be answered turns on whether the services being offered by the corporation are illegal, the issue must be decided on the current state of the law.
     
      
      . KRS 199.590(2) as amended in 1984 prohibits "purchase of any child for the purpose of adoption or any other purpose, including termination of parental rights.” The change in wording to include purchase of a child for the purpose of termination of parental rights does not render the nature of the services conducted by SPA illegal for reasons which will be covered later in this opinion.
     
      
      . Presumably, in this procedure a husband and wife bear a child utilizing an egg taken from another woman, fertilized by the husband, and then implanted in the womb of the wife. Donor “in vitro fertilization” differs from SPA’s procedure only in who carries the fertilized egg. Donor "in vitro fertilization” and "surrogate parenting" are virtually indistinguishable from the standpoint of biological engineering.
     