Family Law

Utah Supreme Court Takes 2 Years To Rule In Favor Of Gay Parents’ Constitutional Rights To Surrogacy

The opinion is long, but it has a good ending for hopeful LGBTQ parents.

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Talk about dragging your feet. Oral argument took place in the case of In Re Gestational Agreement before the Utah Supreme Court in September 2017. A time when Prince Harry and Meghan Markle weren’t even engaged yet! But hoping to avoid the dreaded two-year mark, the Utah Supreme Court finally issued its opinion in the case last week. At 75 pages, the opinion is long, but it has a good ending for hopeful LGBTQ parents.

The case arose because the Beehive state had a law on its books regulating when a person or couple could turn to the process of surrogacy to have a child. Specifically, the statute required that all parties (intended parents, surrogate, and surrogate’s spouse) together must petition a court to validate their gestational agreement before the parties can move forward. That’s obviously no light burden by itself. But more, as a prerequisite of the court validating the gestational agreement, the court must find that there is “medical evidence … show[ing] that the intended mother (emphasis added) is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health of the unborn child.” So for you eagle-eyed readers, you can see where this is headed.

Prior to this case, many Utah district court judges — even behind the “Zion Curtain” — took the reasonable path of reading the medical requirement regarding the “intended mother” in a gender-neutral manner. That meant that same-sex male couples could move forward with surrogacy. After all, since generally, neither intended parent in a same-sex male couple has a uterus, that is pretty solid medical evidence that both are unable to bear a child. But the parties to this case were assigned to a judge who opted to go a harsher route, and ruled that the statute did not apply to same-sex male couples at all, since they lack an “intended mother.” The judge denied their petition.

The parties quickly appealed to the Court of Appeals, and the case went to the Utah Supreme Court as a matter of first impression.

Everyone Is On The Same Page

Fascinatingly, unlike most cases on appeal, there was no opposing party defending the ruling below. All parties — the intended parents, gestational surrogate, and her spouse -– wanted to move forward with the planned surrogacy arrangement to give the intended fathers a chance of becoming parents. Not only were there no private parties in opposition, but to its credit, the State of Utah itself supported the parties and submitted an amicus brief arguing that the statute should be read in a gender-neutral manner.

Supreme Court Says No To Gender-Neutral Reading Of The Statute

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Despite all the parties and the State’s amicus brief arguing for a neutral-reading of the statute, the Utah Supreme Court determined that that was not possible. Instead, the court found that the proposed gender-neutral statutory interpretation would be “inconsistent with the manifest intent of the Legislature” and “repugnant to the context of the statute.” Oh, that seems bad.

Not so fast, though.

The court instead turned to arguments under the U.S. Constitution, and, in light of the 2015 Obergefell ruling requiring states to recognize same-sex marriage — and the subsequent case Pavan, which confirmed the constitutional right of same-sex couples to the “constellation of benefits” tied to marriage — the court found the “intended mother” requirement of the statute was wholly unconstitutional. So it just struck down the provision.

I spoke with Robert M. Tzall, an assisted reproductive technology attorney practicing in Utah (as well as Nevada, New Jersey, and New York). “From any reasonable understanding of equal protection and due process, and as confirmed by the lack of a dissent, it hard to imagine the court coming to any other ruling. That’s why ART attorneys throughout Utah could not understand what was taking so long.”  Despite the long wait, Tzall was “pleased that as a practitioner, I can now provide certainty in the law to all my clients interested in building their families in Utah.”

Of course, the constitutional findings were resolved within the first 25 pages of the opinion. So what were the next 50 pages about?

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Concurrences

Justices Pearce and Lee each spent quite some time discussing whether it is a problem for the court to hear a case lacking adversarial parties. I won’t bore you with the details, but each of the justices spent a great deal of time addressing very meta questions about whether the court ought to address cases without an adversarial relationship between the parties in the first place.

So for all you interested in reading about the Utah Supreme Court’s jurisdiction over non-controversies, check out pages 26-75 of the opinion. For the rest of us, just focus on the part that clears the path for LGBTQ couples to move forward with growing their families through surrogacy in Utah.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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