FAMILIES
Surrogacy Opened to Gay Parents in Utah
State Supreme Court fi nds 2005 law violated married same-sex couples’ rights
BY ARTHUR S. LEONARD
The Utah Supreme Court ruled on
August 1 that a state law that allows
for gestational surrogacy contracts
subject to approval by a judge is
unconstitutional to the extent that it excludes
married same-sex couples from entering into
enforceable contracts. Concluding that the offending
exclusion is “severable” from the overall
statute, the high court sent the case back to
a trial court for approval of a surrogacy agreement
involving a gay male couple.
The gay couple, identifi ed in the court’s opinion
as N.T.B. and J.G.M., wanted to make a
surrogacy contract with D.B. and G.M., a different
sex married couple, and submitted the
paperwork to District Judge Jeffrey C. Wilcox.
Utah’s surrogacy law was enacted in 2005,
when marriage was not available to same-sex
couples. Though it did not explicitly exclude
same-sex couples, it included language saying
the judge must fi nd that “medical evidence
shows that the intended mother is unable to
bear a child or is unable to do so without unreasonable
risk to her physical or mental health
or to the unborn child.” In other words, Utah
legislators were unwilling to okay surrogacy
agreements for intended parents who wanted
to pay somebody to bear their child for reasons
of convenience, but instead only for reasons of
medical necessity.
Wilcox, reading this provision literally, argued
that the words “mother and her plainly
refer to a woman,” so because “neither of the legally
married intended parents are women the
court must deny their petition.” The judge rejected
the petitioners’ argument that he should
apply a gender-neutral interpretation to the
statute or that denying the married gay couple
the right to make a surrogacy contract violated
their constitutional rights.
The gay couple’s appeal was greenlighted to
go directly to the State Supreme Court. Even
though the state fi led a brief urging that court
to allow the gay couple’s agreement to be validated
— and so there was no direct confl ict
between parties to be resolved — Chief Justice
Matthew B. Durrant, in his opinion for the
court, concluded that it had an appropriate role
in resolving this question of family law.
Like Wilcox, however, Durrant was unwilling
to resolve the case by simply applying a genderneutral
interpretation and requiring only that
the intended parents show they are medically
unable to bear a child. If such an approach were
taken, he noted, a different-sex couple would
qualify to enter into a surrogacy agreement if
they could show the intended father was unable
The Utah Supreme Court, with Chief Justice Matthew B. Durrant at center.
MATT TRACY
Out gay Senator Brad Hoylman is leading the effort to reform surrogacy
law in New York State.
to bear children. And that would essentially
override the clear legislative intent to limit different
sex couples from entering into surrogacy
agreements to those in which the woman was
medically unable to bear a child.
Having rejected a gender-neutral construction
of the 2005 statute, the court then considered
whether the requirement that one of the
intended parents be a woman violated the gay
couple’s constitutional rights. On this point, the
court unanimously concluded that it did — under
both the US Supreme Court’s 2015 marriage
equality ruling in Obergefell v. Hodges and its
Pavan v. Smith decision two years later.
Even though Justice Anthony Kennedy’s
opinion in Obergefell made clear that because
the right to marry is a “fundamental right”
same-sex marriages deserve all of the rights of
any marriage, some lower courts did not get that
message. The Arkansas Supreme Court, in Pavan
DRAKE BUSATH/ UTCOURTS.GOV
v. Smith, found that the state could refuse
to put the names of both women in a married
couple on their child’s birth certifi cate because
only one of them was “biologically related” to
the child. The US Supreme Court reversed that
decision, fi nding that since the husband of a
woman who gives birth is automatically listed
on a birth certifi cate, so too must be a same-sex
spouse because the 14th Amendment requires
that all married couples be treated equally.
Durrant found this clearly applicable here.
The Utah statutory requirement that validation
of a gestational agreement requires that at least
one of the intended parents be female, he wrote,
“squarely violates Obergefell in that it deprives
married same-sex male couples of the ability
to obtain a valid gestational agreement — a
marital benefi t freely provided to opposite-sex
couples… Because under Obergefell same-sex
married couples are constitutionally entitled
to the ‘constellation of benefi ts that the States
have linked to marriage,’ we hold the intended
mother requirement... unconstitutional.”
Although the 2005 law did not explicitly include
a severability clause, the court concluded
that it could feasibly strike the intended mother
requirement as applied to gay male couples
without undermining “the operability of the remaining
portions of the statute.”
This opinion is an important contribution to
the growing body of cases adopting a broad construction
of the precedent created by Obergefell
v. Hodges and the Supreme Court’s subsequent
decision in Pavan v. Smith. It’s worth noting
that same-sex couples in Utah now enjoy
a right denied them here in New York, where
compensated gestational surrogacy contracts
remain illegal for all couples.
August 15 - August 28, 2 20 019 | GayCityNews.com
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