Prenatal Child Support Returns to National Discussion
Prenatal Child Support Returns to National Discussion
Media Abuzz Over Kentucky Senate's Passage of Bill Allowing Mothers to Retroactively Collect Child Support for Unborn Children
In the past several weeks, major media outlets have been reporting on the Kentucky Senate’s passage of Senate Bill 110, which relates to retroactive child support payments for the entire duration of pregnancy. The articles speculate on what passage could mean for state budgets and venture into interviews on fully unrelated issues like prenatal personhood and abortion access; however, not a single one of them has addressed Kentucky’s — or even the nation’s — decades of prenatal aspects in child support and how (if at all) this current bill could shift the conversation to help struggling women.
To put into context the aim of such legislation, let me take a moment to explain what prenatal child support is and then cover the entirety of what SB 110 seeks to amend in the Kentucky Revised Statutes.
The concept of prenatal child support itself is not as novel as one may believe, and the complexity of child support laws in general causes it to often be overshadowed. In short, such laws are components of child support that allow for reimbursement of pregnancy expenses or (in isolated examples) the immediate collection of financial support during pregnancy.
The concept of prenatal child support likely arose in the colonial era of what would become the United States under the archaically-named “bastardy” and “illegitimacy” laws.
The earliest common law example I have found in my research came from the 1810 edition of Smith’s Laws from Pennsylvania, which analyzed statutes in place from 1705 until its publication. The chapter on child support concluded with the statement, “On a conviction of bastardy, the uniform practice has been, to make an allowance for lying-in expenses, and a gross sum for the support of the child from its birth to the time of judgment.” It concludes with the citation “MSS. Reports, Sup. Court.” This passage gives no specific case examples or the typical financial allocation directed to cover lying-in expenses.
The earliest statutory law passed within the United States came in Georgia’s Acts, Vol. I of 1793. It contained a provision for “the expense of lying-in with such child or children, boarding, nursing, and maintenance, while the mother of such child is confined by reason thereof.”
In the modern era, the term “lying-in” is rarely used, so it can be vague in its implementation, referring to just the expenses of childbirth itself or in a period of sickness leading up to the point of childbirth. Based on cases like Goddard against The Commonwealth (1820), Holmes v. Mitchell (Md., 1850), and Hanisky v. Kennedy (56 N.W. 208, 1893), it would seem that judges were given a good amount of leeway in their interpretations of such terminology, ruling in favor of anything from just confinement costs to all pregnancy expenses.
In the nineteenth and twentieth centuries, state legislatures continued adding statutory provisions for reimbursement of pregnancy expenses that were covered by the mother, the local government, or any charitable organizations. In some cases, such as Cederquist v. Archuleta (127 Colo. 41, 253 P.2d 431, 1953) in Colorado, prenatal aspects of child support were established in the absence of statutory law.
The most rapid periods of statutory adoption and reciprocity came in response to template legislation in the 1920s and 1970s. The final major push by the Federal government in 1996 led to all states and territories eventually adopting some baseline level of prenatal child support. (For some states, this was little more than allowing the father to protect himself from losing custody if he could prove he had supported the mother during pregnancy.) As child support laws grew in the centuries from just a couple paragraphs to multiple chapters of entire legal frameworks and administrative policies, the adoption of prenatal aspects became complicated, difficult to enforce, and even completely unknown.
Regarding Kentucky’s history, the earliest push for prenatal child support came from a 1923 Kentucky Children’s Code Commission report that recommended the following changes to existing child support statutes:
Remove stigmatic terms like “bastard” from child support laws
Allow for child support proceedings to begin during pregnancy with the trials after birth
Address reasonable expenses of the mother during confinement, when the mother’s and child’s health cannot be considered separate
Allow for recovery of prenatal expenses up to one year after the child’s birth or stillbirth
It would be another four decades before a child support law, the Uniform Act on Paternity (1964), contained prenatal aspects. It addressed a few of the earlier recommendations, including:
Retroactive liability of the father for the mother’s pregnancy and confinement expenses
Complaints for reimbursement able to be initiated by the mother or by the person or agency that covered expenses
Initiation of complaint up to four years after child’s birth or stillbirth
The proposed changes are very minor, only touching on KRS chapters 403 and 406:
KRS 403.211(1):
CURRENT: “…county in which the child resides or where the defendant resides.”
AMENDED: “…county in which the child, mother, or defendant resides.”
KRS 403.211(2):
ADDED: “A child support order shall be retroactive pursuant to Sections 2 and 3 of this Act.”
KRS 403.160(2)(a) and KRS 403.160(2)(b):
ADDED: “2. Nine (9) months prior to the birth of the child if the order is entered within the first year after the birth of the child.”
KRS 406.025(5) and KRS 406(6):
ADDED: “b. Nine (9) months prior to the birth of the child if the order is entered within the first year after the birth of the child.”
Whether intentional or not, these changes would finally incorporate the recommendations by the Commission over a century ago, clarifying retroactive reimbursement for the gestation of pregnancy, if filed within a year after childbirth — and presumably stillbirth.
How do these proposed changes affect existing child support laws?
The current statutes are vague on enforcement of the prenatal aspect, so this new legislation could potentially help clarify the applicable duration of coverage. However, these changes would not clarify what is covered for reimbursement. For example, the KRS would still lack specific itemized pregnancy expenses like “medical insurance premiums” or “lost wages due to medical necessity” that Hawaii Revised Statutes and Minnesota Statutes contain, respectively, in their statutes. Without clarity, it is unclear at this point how judges within Kentucky would or could rule on these aspects.
Any earlier revision of the bill allowed for initiating the complaint at any time during pregnancy, but that was dropped for the current revision. This could have been a groundbreaking move, as immediate prenatal child support payments — rather than retroactive ones — are still very rare, with safe prenatal paternity testing as early as seven weeks gestation being a recent invention, and the average age of prenatal aspects to child support laws being much older at over a century. Utah’s House Bill 113 in 2021 is the only recent, clear example of this. With Kentucky dropping a similar provision in an earlier draft, it seems like a missed opportunity that could have helped struggling mothers immediately, rather than requiring them to wait months for the ability to even seek reimbursement from the father for expenses.
Overall, Senate Bill 110 is better than nothing in its current form, but it still lacks full implementation of recommendations from over a century ago and a modern framework to account for advancing paternity testing technology.
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