The Utah Supreme Court has struck down a portion of their surrogacy law that banned same-sex couples from entering into gestational surrogacy agreements to have children. In the Court’s ruling last week, Chief Justice Matthew Durrant said “same-sex couples must be afforded all of the benefits the State has linked to marriage and freely grants to opposite sex-couples.”
In fact, although Utah restricts surrogacy to married couples, the State did not permit same sex couples from using a surrogate to create their family before this case.
When the married gay couple and their surrogate and her husband presented the surrogacy agreement to the District Court, it was denied by the judge because he felt that the law’s use of the words “mother and her plainly refer to a woman” and that because neither of the legally married intended parents were women, he had no choice. The couples appealed to the Utah Supreme Court challenging the constitutionality of the law in light of marriage equality being granted nationwide in 2015.
The case was not opposed by the Utah Attorney General, and the office actually instructed the Supreme Court that the statute should be gender neutral.
Ultimately, in a unanimous ruling, the justices struck down that part of Utah law. “A valid gestational agreement is undoubtedly a benefit linked to marriage,” Chief Justice Durrant wrote. “Obtaining a valid gestational agreement is, in many cases, one of the most important benefits afforded to couples who may not be medically capable of having a biological child. Such an agreement works to secure parental rights to an unborn child and bestows rights and benefits on the intended parents. The State has explicitly conditioned this benefit on a petitioner’s marital status; no unmarried couple may obtain one. It is therefore unquestionably linked to marriage.”
The Court did preserve the remainder of the law in order to keep gestational agreements valid, regardless of who seeks them. An amazing ruling for certain!
You can find a copy of the Supreme Court Ruling here.