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Utah surrogacy gender discrimination case may be first in the nation

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Utah Supreme Court justices will hear arguments Tuesday in a case challenging Utah’s surrogacy laws. The married gay couple’s petition to enter a surrogacy agreement was denied last year by southern Utah’s 5th District Court Judge Jeffery C. Wilcox, who determined he had no choice but to reject the petition “because neither of the legally married intended parents are women.” The couple is now asking Utah’s high court to declare a portion of the state’s surrogacy law unconstitutional as it forbids gay men the right to have biological children through surrogacy.

“As written, [the law] creates two classes of intended parents; one class for married same-sex male couples and another class for married couples where at least one of the intended parents is female,” the couple’s attorney Edwin Wall wrote in a brief filed with the court. “That exclusion violates the due process and equal protection clauses of the U.S. Constitution, as well as the uniform operation of law clause in the Utah Constitution.”

The Utah Attorney General’s office, which typically defends state laws before the court, is not opposing the case. In its own brief, the office agrees that the district court’s order should be reversed and supports a gender-neutral reading of the statutes, the brief from Assistant Solicitor General Brent Burnett said.

“If marriage equality really means what the Supreme Court said it does, then that should mean this gay married male couple should have the same entitlements as others,” Widenar University law professor John Culhane, who frequently writes about legal issues for LGBTQ people, told The Salt Lake Tribune. The equality argument, he added, is one that any state would be hard-pressed to defend against.

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