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The Fertility Show


 

Gay couple denied surrogacy challenges Utah law

18 September 2017

By Sarah Pritchard

Appeared in BioNews 918

A married gay male couple in Utah is challenging the state's law that says couples need to prove that a woman is unable to have children before turning to surrogacy (see BioNews 297).

The couple, known only as Noel and Jon, were denied the chance to have a biological child via surrogacy in 2016, when a District Judge ruled in line with the law in Utah that indicates one of the prospective parents must be female.

The case is now being heard in the Utah Supreme Court where the couple's attorney, Edwin Wall, is arguing the law violates the US constitution on the grounds that it unfairly discriminates against gay male couples. In 2015 the US Supreme Court legalised gay unions nationally, granting same-sex couples all of the same rights as heterosexual couples.

'As written, [the state's 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,' said Wall.

Specifically, the law says that before surrogacy is agreed, the prospective parents must prove there are serious health risks to a woman if she were to have children. Wall told the court there were two routes to a decision: Find the statute discriminatory, and so unconstitutional, or direct the courts to read the law as gender neutral, despite its references to a 'mother'.

State attorneys have elected not to appear before the Supreme Court, instead submitting a brief that states the law should be read as gender neutral. Although judges in Utah have made past rulings to allow male married couples to pursue surrogacy on this basis, Justice Thomas Lee queried whether this would be enough to settle the case, and Justice John Pearce questioned whether a law written well before the legalisation of same-sex unions could be read retroactively as neutral. 

'It's a big thing to strike down a statute on constitutional grounds,' said Justice Lee.

The case is the first of its kind to come before the Utah court, and Yale law professor Douglas NeJaime told the Salt Lake Tribune it may also be the first time any US court has considered a challenge to state surrogacy laws on grounds of sexual orientation or gender.

SOURCES & REFERENCES
US News and World Report | 12 September 2017
 
Metro Weekly | 13 September 2017
 
Salt Lake Tribune | 14 September 2017
 
Salt Lake Tribune | 12 September 2017
 

RELATED ARTICLES FROM THE BIONEWS ARCHIVE

14 August 2017 - by Julianna Photopoulos 
A number of liberal reforms to the Surrogacy Regulation Bill 2016 have been proposed by India's parliamentary Standing Committee on Health and Family Welfare...
10 July 2017 - by Jennifer Willows 
A same-sex French couple have won a partial victory in their fight to be recognised as the legal parents of their child, who was born via surrogate in the US...
30 August 2016 - by Antony Blackburn-Starza 
A same-sex male couple in South Africa has become the first set of parents in the country to have triplets who share both the fathers' DNA...
21 December 2015 - by Ayala Ochert 
The legislature in the Mexican state of Tabasco has voted to prevent foreign couples and gay men from having children via surrogacy...
27 July 2015 - by Julianna Photopoulos 
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