Blog Post | 114 KY. L. J. ONLINE | November 16, 2025
Legal but Unregulated: An Overview of State Surrogacy Regulations, or Lack Thereof
By: Olivia Kiser, Staff Editor, Vol. 114
In the recent Wired article “The Baby Died. Whose Fault is It?,” the loss of a child carried by a surrogate initiated a legal battle lasting over a year in which the intended mother sued the surrogate (along with the intended mother harassing, doxxing, and stalking the surrogate),[1] While the specific details in that case are sensational, the core story—that an agreement for a surrogate pregnancy went wrong—is not unique. The unregulated nature of the surrogacy industry, with laws varying from state to state and issues usually being taken care of “in private, shrouded by confidentiality clauses and handled in closed arbitration proceedings,”[2] means that the same situation can have a radically different outcome depending on the jurisdiction. Current Kentucky law in this area is woefully inadequate, and regardless of the exact details of any eventual legislation, something more must be passed to regulate the industry in the state.
A surrogate mother is defined as “a woman who becomes pregnant by artificial insemination or by implantation of a fertilized egg created by in vitro fertilization for the purpose of carrying the fetus to term for another person or persons.”[3] The two types of surrogacy are gestational and traditional.[4] In gestational surrogacy, which this post focuses on, the surrogate mother is not genetically related to the fetus, as her egg is not utilized.[5] In most instances involving a heterosexual couple, the embryo is created via in vitro fertilization from the intended parents’ genetic material, but depending on the situation, donor sperm or eggs can be used.[6]
Surrogacy laws vary considerably by state, with no single overarching federal legislation on the issue.[7] There are several components to the process that can be regulated by statute, including whether it is legal to compensate the surrogate mother (although even states that prohibit compensation generally allow the mother to be compensated for medical expenses), whether contracts regarding surrogacy are enforceable, and whether the intended parents can be listed on the birth certificate or must establish parentage through separate pre- or post-birth orders.[8]
On one end of the spectrum, California is a very surrogacy-friendly state. In it, commercial (that is, with compensation in addition to medical expenses) surrogacy is legal, contracts regarding gestational surrogacy are enforceable, and parentage can be established on birth certificates without the need for pre-birth orders or adoption proceedings.[9] Other states with similar surrogacy-friendly legislation include New Jersey[10] and New York.[11]
At the other end of the spectrum is Louisiana, in which the only enforceable surrogacy contracts are those in which married, heterosexual couples use their own gametes and compensation is limited to the surrogate mother’s medical expenses.[12] Louisiana also requires that a court order be issued before embryo transfer to approve the contract and recognize the intended parents as the legal parents of the child.[13] Nebraska has specifically deemed surrogacy contracts to be unenforceable.[14] Many other states simply have no statute or relevant case law on the issue of surrogacy at all. These include Alaska, Georgia, Hawaii, Minnesota, Mississippi, Missouri, Montana, North Carolina, Oregon, Pennsylvania, and South Dakota.[15]
Kentucky law specifically prohibits “be[ing] party to a contract or agreement which would compensate a woman for her artificial insemination and subsequent termination of parental rights to a child born as a result of that artificial insemination.”[16] However, it specifically notes that it should not be construed to completely prohibit in vitro fertilization.[17] The placement of this statute within the KRS section covering adoption, along with the fact that it has not been substantively updated since at least 1988, make it clear that this is a statute originally created to prevent a woman from being compensated for having a child and giving it up for adoption. However, this statute contains no actual reference to the process of gestational surrogacy. In effect, by specifically not prohibiting in vitro fertilization, this statute legalizes it in the least helpful way possible. It provides no further regulations or guidance. There are no additional statutes or case law on point in the state of Kentucky; we are on our own.
So, where does this leave Kentucky? As things currently are, Kentucky effectively belongs to that category of states which have no relevant legislation or case law. This cannot be a sustainable course of action: given the potential pitfalls of parentage and maternal health at play, any regulation is better than none.
States with very permissive surrogacy laws are not above criticism, from the belief that systems allowing for compensated surrogacy are overly-profit driven and change only in reaction to scandal[18] to the general issues of the power dynamic at play between the intended parents and the surrogate mother that can lead to situations like that in the Wired article that began this post.[19] However, that does not mean that the alternative in states like Louisiana, in which surrogacy is tightly controlled but limited solely to married heterosexual couples, is a preferable option.
I am not arguing for Kentucky to completely adopt a “surrogacy-friendly” set of legislation, or for any statutory regime in particular. Rather, I am simply advocating for something: legislation that does more than vaguely shrug at the issue, declare it legal, and then leave it entirely unregulated. A law does not have to be and cannot be perfect; however, it is inarguable that having some form of guidance would be preferable to Kentucky’s current situation, in which policy seems likely to be determined by the first judge who receives a case that cannot be settled.
[1] Emi Nietfeld, The Baby Died. Whose Fault Is It?, Wired (September 3, 2025, 6:00 AM), https://www.wired.com/story/the-baby-died-whose-fault-is-it-surrogate-pregnancy/.
[2] Id.
[3] Surrogate Mother, Merriam-Webster, https://www.merriam-webster.com/dictionary/surrogate%20mother, (last visited November 3, 2025).
[4] Gestational Surrogacy, Cleveland Clinic, https://my.clevelandclinic.org/health/articles/23186-gestational-surrogacy, (last visited November 3, 2025).
[5] Id.
[6] Id.
[7] See Surrogacy Laws by State, Legal Pro. Grp., https://connect.asrm.org/lpg/resources/surrogacy-by-state?ssopc=1, (last visited November 3, 2025) (outlining an overview of current surrogacy laws in all 50 states).
[8] Id.
[9] Cal. Fam. Code § 7960 – 62 (West 2025).
[10] See N.J. Stat. Ann. § 9:17 – 65 (West 2025).
[11] See N.Y. Fam. Ct. Act § 581-101 – 705 (McKinney 2025).
[12] H.B. 1102, 42nd Reg. Sess. (La. 2016).
[13] Id.
[14] Neb. Rev. Stat. Ann. § 25-21,200 (West 2025).
[15] See Surrogacy Laws by State, supra note 7 (listing states with no relevant legislation or case law).
[16] Ky. Rev. Stat. Ann. § 199.590 (West 2025).
[17] Id.
[18] See generally, Leah Kennedy, Can I Have Your Baby? Paternalism, Autonomy, and Money in California’s “Surrogacy-Friendly” Statutory Scheme, 33 Stan. L. & Pol’y Rev. 188 (2022) (examining issues with California’s current surrogacy legislation).
[19] Nietfeld, supra note 1 (“[a] stark power differential means that intended parents often have the means to file lawsuits and wage yearslong campaigns, while surrogates who feel screwed are forced to rely on free legal help and GoFundMe.”).