Utah Supreme Court Overrules Decision that Same-Sex Couples Cannot Make Enforceable Agreements for Gestational Surrogacy

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By Matthew Goodwin and Arthur S. Leonard

An August 1, 2019 ruling from Utah’s highest court declared the state’s surrogacy statute unconstitutional insofar as it undermined gay couples’ ability to have children through gestational surrogacy by making such agreements invalid. In re Gestational Agreement (N.T.B., J.G.M., D.B., and G.M., Petitioners), 2019 UT 40, 2019 WL 3521540 (Utah Supreme Ct., Aug. 1, 2019). In gestational surrogacy, the woman who bears the child is not its genetic parent, because the fertilized egg that is implanted was donated by another woman.

The law in question, 78B Utah Judicial Code, Sections 15801 et seq., was enacted in 2005, prior to the legalization of same-sex marriage in the state as a result of litigation beginning in 2013 and culminating in the Supreme Court’s refusal to review a marriage equality ruling by the 9th Circuit in 2014. The law provides that a surrogacy contract is valid and enforceable only if a judge finds that the “intended mother” was unable to conceive or that it was medically too risky for her to do so. Some other states, by contrast, allow the enforcement of such arms-length gestational surrogacy contracts regardless of the genders of the intended parents. In yet others, including New York, for example, such contracts are not enforceable (and are in some circumstances outlawed), either as a matter of judicially declared public policy or statute.

N.T.B. and J.G.M, male same-sex spouses and intended parents, entered into a gestational surrogacy agreement with D.B. and G.M., an opposite-sex married couple (collectively Petitioners), for the wife to carry a child to term for the intended spouses. All four parties petitioned the Utah district court to approve their agreement. Following a telephonic hearing, 5th District Court Judge Jeffrey C. Wilcox denied the petition.

The code sections at issue reference an “intended mother,” and there is no “intended mother” in a male same-sex couple. The Petitioners asked that the statutory language be construed in a gender-neutral fashion, but Judge Wilcox, while stating that their “reasoning [was] sound,” concluded that “the word[s] mother and her plainly refer to a woman,” and that he was “bound to apply the statute as written.” That is, the court found that gestational surrogacy was only available for different-sex couples. Given that both of the intended parents among the petitioners in this case were men, the court held that it had to deny the petition and refuse to validate their agreement with the surrogate and her husband because there was no “intended mother.”

The Petitioners appealed and the case was certified directly to the Utah Supreme Court. There, the Petitioners argued that (1) the district court should have construed the statute in a gender-neutral fashion and (2) under the district court’s reading, the statute was unconstitutional at both the state and federal level.

The Supreme Court’s decision was written by Chief Justice Matthew Durrant. The court was unanimous in reversing Judge Wilcox, but there were concurring opinions by two members of the court departing from Durant’s reasoning.

The appeal was unopposed and the Utah Attorney General’s (UAG) office in fact agreed with Petitioners that the statute should be gender neutral in its application. Chief Justice Durant, however, after analyzing the justiciability of the questions presented and finding that an actual controversy between the parties as to the outcome was not required because a statute authorized judicial determination whether to validate a surrogacy agreement, declined to read the statute in a gender-neutral manner as urged by the Petitioners.

In this connection, the Petitioners and the UAG’s office pointed to another statute providing general rules for interpretation of Utah statutes, “which provides the following specific instructions for construing terms that are phrased in only one gender or phrased in singular terms: ‘unless the construction would be . . . inconsistent with the manifest intent of the Legislature; or . . . repugnant to the context of the statute,’ a word used in ‘[t]he singular includes the plural, and the plural includes the singular’ and ‘[a] word used in one gender includes the other gender.’ The [UAG] urge[d] [the court] to apply the latter rule of construction and read the word ‘mother’ as including the ‘other gender,’ so that, in effect, ‘mother’ means ‘parent.’” Nevertheless, Durant wrote that adopting this argument would be contrary to the surrogacy statute’s “plain meaning,” not a permissible interpretive approach because “inconsistent with the manifest intent of the Legislature.”

Turning to the constitutional arguments, the court held that the statute “…effectively conditions the validation of a gestational agreement on at least one of the two intended parents being a female parent. This squarely violates Obergefell in that it deprives married same-sex male couples of the ability to obtain a valid gestational agreement — a marital benefit freely provided to opposite-sex couples. Under the statute, married same-sex male couples are treated differently than married opposite-sex couples. Because under Obergefell same-sex married couples are constitutionally entitled to the ‘constellation of benefits that the States have linked to marriage,’ we hold the intended mother requirement in [the statute] unconstitutional.”

In invalidating the statute’s literal application on constitutional grounds, Justice Durrant relied not only on Obergefell v. Hodges, 135 S. Ct. 2584 (2015) — i.e. the case which conferred the nationwide right to same-sex marriage — but also Pavan v. Smith, 137 S. Ct. 2075 (2017), another U.S. Supreme Court precedent which followed from Obergefell.

In Pavan, the Supreme Court reversed a decision of the Arkansas Supreme Court and held that under Obergefell the state could not refuse to put the names of two married women on their child’s birth certificate. The Arkansas court ruled that only the birth mother could be listed, on the basis that only she was biologically related to the child. In reversing, the Supreme Court held that because the right to have a spouse’s name listed on a birth certificate regardless of gender was among the “constellation of benefits” that states have linked to marriage, it was a right to which the plaintiffs in that case were entitled.

In other words, the Utah Supreme Court ruled in this case that the 14th Amendment requires that all married couples be treated equally, so refusing to validate a gestational surrogacy contract solely because the petitioners were a same-sex married couple runs afoul of the constitutional mandate of Obergefell and Pavan.

Justice John A. Pearce concurred in the result, but expressed at great length his concerns about the part of Durrant’s opinion concerning justiciability of the case, in light of the UAG’s agreement with the Petitioners about how the statute should be construed. He did not question the court’s holding on the merits. Associate Chief Justice Thomas R. Lee wrote to address the concerns about the ruling on justiciability expressed by Justice Pearce, and also stated complete agreement with the court’s ruling on the merits.

The petitioners were represented by Edwin S. Wall and Damian E. Davenport, both of Salt Lake City. Attorney General Sean Reyes was represented by Solicitor General Tyler R. Green and Assistant Solicitor General Brent A. Burnett.

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