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.
The 2005 legislation – which Hillyard sponsored – allowed married couples to enter court-approved contracts with surrogates, where the parties agree that upon birth of the child legal parenthood will pass to the intended parents.
'Gay marriage was not an issue' when the law was passed, Senator Hillyard said, but recently the legislation has been challenged on that front.
In a case which has now reached the Utah Supreme Court, a male same-sex couple is testing the requirement for 'mothers' to prove they are medically unable to bear a child (see BioNews 918). Lawyers for the couple argue that this discriminates against couples where neither member is female, which 'violates the due process and equal protection clauses of the US Constitution, as well as the uniform operation of law clause in the Utah Constitution', according to court papers.
Senator Hillyard argues that judges are wrong to interpret the law to include gay couples and that the intention was that the legislation should only apply within traditional marriage, which is why the intended parties are narrowly defined as a husband and wife.
'Some of my colleagues voted for the bill only on my agreement that if the court or people started doing things other than specifically outlined in this bill, I would seek to have it repealed, and that's what I'm doing here,' said Hillyard.
If Hillyard is successful, surrogacy will not become illegal in Utah, but courts will no longer be able to approve contracts between parties, meaning that legal protections are lost. This could result in couples having to adopt their children, and surrogates being left with unwanted legal responsibilities for the children they have carried.
Many surrogacy advocates attended the bill's hearing in the Senate Health and Human Services Committee on 7 February. All the speakers except Hillyard want the current legislation to remain, and many wanted to see it be amended to be more inclusive.
Abby Cox, who acted as surrogate for her sister-in-law, told the committee: 'Families have gone through more than we can imagine to get to the point of contemplating surrogacy. To not allow them that protection, to be able to have that going forward, I think would be a huge mistake.'
Hillyard responded: 'I don't think there's anyone who thinks all surrogate births are wrong …We just need to make sure the law is written in a way that only allows surrogate births under specific circumstances. We need to stop selling babies.'