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