Utah’s Supreme Court recently ruled that a Utah state statute is unconstitutional because it excluded same-sex couples from being able to enter into gestational surrogacy contracts.
The issue came about when an unnamed same-sex couple wanted to enter into a surrogacy agreement as intended parents with a heterosexual surrogate and her husband. At the time, there was a statute in effect that set forth the requirements for the parties to a surrogacy agreement. Although same-sex marriage was not legal in Utah at the time, there wasn’t any specific language in the statute stating that same-sex couples were expressly prohibited from entering into them.
How Utah defined surrogacy eligibility
When the statute was originally enacted in 2005, it said intended parents who wanted to enter into a surrogate agreement must show that serious mental or physical harm could occur to either the mother or the child if the mother gave birth to it. When the same-sex couple wanted to enter into a surrogacy agreement, there was obviously no “mother” to comply with those provisions of the statute. Therefore, the Utah law did not qualify them as intended parents who could validly enter into such an agreement. When the same-sex couple initially contested the validity of the statute as applied to them, the judge in the 5th District Court pointed specifically to the statute’s gender specifications, stating that since neither of the intended parents were women (or “mothers”), they didn’t qualify for surrogacy.
Fortunately, after the U.S. Supreme Court ruling in 2015 that legalized same-sex marriage nationally, the couple appealed their case to the Utah Supreme Court. In connection with that appeal, the Utah Attorney General’s Office agreed with the couple’s argument and suggested to the Utah Supreme Court that the statute should be gender-neutral, despite the specific language in the law that said “mother,” “birth mother” and “woman.” The Supreme Court agreed and overruled the 5th District Court’s decision, holding that the statute was unconstitutional.
Requirements for parties to a surrogacy agreement in Utah vs. Minnesota
In Utah, there are also specific rules one must follow if they want to become a surrogate carrier. Those requirements are:
- The mother has delivered a child before and is currently parenting one of them.
- The mother did not have any complications during pregnancy and has medical records to prove it.
- The mother is between 21-41 years old.
- The mother has a BMI no higher than 33.
- The mother is a legal citizen of the United States and can provide two years’ worth of valid citizenship documentation.
- The mother does not participate in any government assistance programs.
Minnesota, on the other hand, has no statute that governs surrogacy or regulates who can be a party to a surrogacy agreement. There are no prerequisites for intended parents or prospective surrogates. It would be helpful if reasonable parameters could be established for parties to such agreements, and, hopefully, there will be such regulation in the near future.
A surrogacy agreement is possible
Despite the absence of express surrogacy law in Minnesota, surrogacy is still possible and reliable under current parentage laws, but it requires the involvement and supervision of an experienced surrogacy attorney to navigate those laws successfully in a surrogacy context. Although surrogacy is inherently a time-consuming, stressful, and complicated process, working with an experienced attorney can significantly reduce those negative aspects of the process. An attorney experienced in these matters can certainly help both aspiring parents and surrogates sort through the intricate details and draft a surrogate agreement so that it addresses all foreseeable issues involved and avoids unnecessary uncertainty and misunderstandings.