Family Law, Health Care / Medicine, Kids

Two Men, Senator Mike Lee's Brother, And Hopefully A Baby

Here's hoping we don't need SCOTUS to get involved.

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Last Tuesday, Utah’s Supreme Court heard arguments on behalf of a gay couple that had been denied the right to use a surrogate. Say what? Yes, Utah has a surrogacy statute, and it’s causing all kinds of problems. The statute requires an intended “mother” in a surrogacy arrangement to prove that she is unable to carry a pregnancy herself. Furthermore, the statute requires that all parties — the intended parents, the surrogate, and her spouse, if there is one — apply to a state district court for approval of their arrangement before conceiving.

Should Gay Men Not Be Parents (In Utah)? Set aside the issue of whether anyone should ever have to prove to a court that they can’t have their own kids before using a surrogate. The plaintiffs — a married same-sex male couple who want to have a child — have a willing volunteer to assist them with carrying a child to birth. Together with a potential surrogate, they followed the required statutory steps of applying to a district court for approval of their arrangement.  However, the southern Utah district court (an area not known for having well-attended pride parades) denied the couple. It held that the statute clearly reads that an intended “mother” must prove that she cannot carry a pregnancy. As gay men, neither one of them would be a mother, and therefore, could never qualify under the Utah statute.

They appealed. Before the Utah Supreme Court, their attorney, Edwin Wall, argued that the statute must be read in a gender-neutral manner. In support of that argument, Wall cited to a state statute requiring such a reading, and the need to avoid discriminatory application of the law.

Ominous Questions. Associate Chief Justice (like a Vice Chief Justice, I guess) Thomas Lee asked the first question at oral argument. Lee –a member of the “The Elect,” as a former law clerk to Justice Clarence Thomas — is the brother of U.S. Senator Mike Lee, as well as a possible Supreme Court nominee in the Trump administration.

Justice Lee’s question did not address the appropriateness of reading the statute in a gender-neutral manner. In fact, Justice Lee pointed out the fact that the plaintiffs are unopposed; the Utah Attorney General agreed that the statute should be read in a gender-neutral manner, and did not appear in opposition at the hearing.

Justice Lee took issue more globally with the state statute in question. He wondered whether the statute was an unconstitutional delegation of the executive’s power. (You can watch the oral argument here, or save it for when you have a big brief due and are looking for ways to procrastinate.) The justice suggested than an agency of the state should be making such approvals, as opposed to courts, whose purpose is to resolve a dispute between parties. Another justice, however, pointed out that the statute was comparable to an adoption where, even if there is no dispute, the court must bless the arrangement. Justice Lee did not sound persuaded.

Was It Just A Matter Of Choosing The Wrong Court? Robert Tzall, an experienced ART attorney practicing in Utah, Nevada, New York, and New Jersey (dude, pick a state!), told me that he works with same-sex male couples who want to use a surrogate in the Beehive State, and that his clients receive judicial approval without any problems. However, he noted that he makes sure none of his clients ever apply in certain jurisdictions in southern Utah.

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Now a negative ruling by the Utah Supreme Court could prevent all judges across the state from approving surrogacy arrangements with gay couples.  Ugh. Let’s hope trying to make things right doesn’t make things worse for everyone.

“This is one of those cases that is a wake up call for both practitioners and the general ART community. Unfortunately, marriage equality has not brought family-formation equality along with it.  We can all do more to lobby and advocate in order to ensure our state’s assisted reproduction statutes provide adequate protection for all types of families,” explained Tzall.

In good news, I am pretty sure if things go poorly, the U.S. Supreme Court would fix it. Just this last term, the Court required that an Arkansas statute be neutrally read in the Pavan case. The recent Supreme Court ruling confirmed that the 2015 Obergefell decision on gay marriage did not just stand for same-sex couples’ right to marry, but also protected the constellation of benefits that come with it – like children. It’s hard to see how post-Pavan, the Utah statute could stand unless it’s read neutrally.

Here’s hoping we don’t need the U.S. Supreme Court to step in with another summary reversal for these Utahn hopeful dads to enjoy equal rights.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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