Rich Vaughn, IFLG: Utah Strikes Law Denying Equal Rights to Gay Dads who have children via Surrogacy

Utah Supreme Court Strikes Statute Denying Surrogacy for Gay Dads

“This appeal comes to us unopposed,” reads the first sentence of the Utah State Supreme Court’s August 1 decision striking down a statute that denied same-sex married couples equal rights to participate in surrogacy agreements automatically afforded to married heterosexual couples. In a rare sign of growing acceptance of reproductive rights—however grudging—in an historically conservative stronghold, the state of Utah joined the petitioners in an amicus brief.

Utah law allows gestational surrogacy under certain narrow circumstances. In order for a gestational surrogacy agreement to be valid and enforceable, the parties to the gestational surrogacy agreement must be approved by a district court.

This case challenged a section of Utah law that requires, in order for the court to approve a surrogacy agreement, 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.”

The crux of the Utah high court’s decision came down to the word “mother,” which, taken at its “plain reading” of the law, means female.

The Case

As described in the Utah Supreme Court opinion, the case was brought by the intended parents—a married gay couple—their would-be surrogate, and her husband, who petitioned the district court to validate their surrogacy agreement, as required by law. The court refused to approve the agreement because of the statute’s language requiring that the intended “mother” provide a medical justification for undertaking surrogacy. In practice, the language created a legal “Catch 22” for gay intended fathers such as the petitioners, identified in court documents only as N.T.B. and J.G.M.

In their appeal, the petitioners argued that the law violated the Utah Constitution’s Uniform Operation of Laws provision and the U.S. Constitution’s Due Process and Equal Protection Clauses and that the language of the law should be interpreted as gender-neutral, i.e. to substitute the word “parent” or “parents” for the word “mother.” The state of Utah filed an amicus brief in support of the argument that the law violated the U.S. Constitution and a gender-neutral reading of the law.

Ultimately, as the Supreme Court opinion describes, the district court determined that it could not say the legislature’s original intent when it passed the law was to interpret the word “mother” as gender-neutral. For that reason, the court declined to approve the surrogacy agreement because “neither of the legally married intended parents are women.”

The petitioners appealed, and the Utah appellate court referred the case directly to the state Supreme Court.

Like the lower court, the Supreme Court rejected the petitioner’s appeal to simply apply a gender-neutral reading to the law, arguing that to do so would subvert the legislature’s original intent. As the Utah high court opinion explains:

“[t]he statute was . . . written with gender specific language at a time when marriage in Utah could only be between a man and a woman.” [The applicable section of law] was adopted in 2005—ten years before the United States Supreme Court’s decision extending the constitutional right to marry to same-sex couples. At the time the law went into effect, Utah’s constitutional provision prohibiting same-sex marriage was operative and legally enforceable. The legislature therefore likely did not contemplate a reading of the statute that would allow same-sex couples to enter valid gestational agreements—a benefit the legislature expressly conditioned on marriage.

Indeed, as reported by Gay City News, if the word “parent” or “parents” were simply substituted for “mother,” a heterosexual married couple could quality for legal surrogacy simply by proving the intended father was unable 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,” the article continues.

Having rejected the argument for a gender-neutral interpretation, the court turned to the issue of constitutionality, citing two landmark LGBT rights cases: Obergefell v. Hodges, which in 2015 legalized same-sex marriage in all 50 U.S. states (see our article on the legal aftermath); and Pavan v. Smith, in which the U.S. Supreme Court ruled that Arkansas must give same-sex parents who have children via assisted reproduction the same right to be listed on their child’s birth certificates as heterosexual parents. As we wrote about this case:

In Pavan v. Smith the Arkansas Supreme Court upheld the state’s right to discriminate by refusing to list both married lesbian moms, who conceived via assisted reproduction, on their baby’s birth certificate, instead listing only the biologically related mother.

That omission constituted unequal treatment, the U.S. Supreme Court ruled in 2017, because heterosexual couples in Arkansas who conceived using assisted reproduction were required by law to list the husband as “father” on the child’s birth certificate. The high court’s verdict: States must issue birth certificates including the female spouses of women who give birth in the state if they include male spouses of women who give birth.

The U.S. Supreme Court’s ruling in Pavan cited the earlier Obergefell decision, which prohibited states from denying same-sex couples “the constellation of benefits that the States have linked to marriage."

In its August 1 opinion, the Utah Supreme Court concluded, “Because a plain reading of [the applicable section of law] works to deny certain same-sex married couples a marital benefit freely afforded to opposite-sex married couples, we hold the statute violates the Equal protection and Due Process Clauses of the Fourteenth Amendment, under the analysis set forth in Obergefell.”

The Utah high court also ruled that the clause requiring a “mother’s” medical justification to qualify for surrogacy was “severable” and could thus be deleted entirely from the statute. The law would still serve the legislature’s intended purpose to regulate surrogacy in the state and to protect the well-being of children born via assisted reproduction, it concluded.

Although surrogacy continues to be strictly limited in Utah, the recent decision is a step forward for reproductive freedom and for LGBTQ equality in the state, at a time when some conservative jurisdictions continue to test every legal angle to dodge compliance. Ironically, as pointed out in the Gay City News’ very thorough report, Utah now enjoys a right to legal surrogacy that progressive New York has yet to win. We hope for a happy update to that story very soon.

 

 

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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
OFFICES
Los Angeles

5757 Wilshire Blvd., Suite 645

Los Angeles, CA 90036

Phone:  +1 323 331 9343

Email:  info@iflg.net

Website:  www.iflg.net

New York
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

501 Fifth Avenue, Suite 1900

New York, NY 10017

Phone:  +1 844 400 2016

Email:  info@iflg.net

Website:  www.iflg.net