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The Kentucky Constitution empowers the legislative branch, but not the judicial branch, of government to articulate public policy regarding health and welfare. The questions of whether and how new medical services offend public policy and should be prohibited by legislation are addressed to the legislature, not the courts.
Surrogate Parenting Associates, Inc. (“SPA”), a Kentucky corporation, operated a medical clinic that assisted infertile couples in obtaining a child through artificial insemination of a "surrogate mother." The contractual arrangement contemplated that after delivery of the child the parental rights of the surrogate mother were terminated, leaving the biological father with custody. In 1981, the Attorney General, acting pursuant to KRS 271A.470, instituted proceedings against SPA, 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 alleged that SPA's surrogate parenting procedure was in violation of the following Kentucky statutes. The trial court dismissed the complaint, holding that SPA’s activities were not illegal and not an abuse of corporate powers. The intermediate court disagreed, holding that the organization's procedures contravened the letter and policy underlying Ky. Rev. Stat. Ann § 199.590(2) prohibiting the purchase and sale of children. SPA appealed.
Were the activities of SPA illegal and violative of the letter and policy underlying Ky. Rev. Stat. Ann § 199.590(2)?
The appellate court disagreed with the intermediate court, and upheld the judgment of the trial court. According to the court, the fact that the biological father's wife could in the future adopt the child did not bring the organization's practice within the statutory prohibition against purchasing a child for the purpose of adoption. The court reasoned that expansion or contraction of termination of parental rights statutes and adoption statutes were not matters for the courts to decide, but matters for the legislature. The surrogate parenting procedure was not foreclosed by any legislation.