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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

12 February 2018 - by Theofanis Michailidis 
Lyle Hillyard of the Utah state Senate is seeking to overturn legislation giving legal protection to parties involved in surrogacy agreements, to prevent it being used by same-sex couples...
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Of Kith and Kin is a play about surrogacy that seems to have very little to say about surrogacy...

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...
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21 December 2015 - by Ayala Ochert 
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