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.