Utah Supreme Court strikes down law banning same-sex couples from gestational agreements

The Utah Supreme Court ruled Thursday that a portion of state law prohibiting same-sex couples from entering into a gestational agreements to have children is unconstitutional.

In the ruling, Chief Justice Matthew Durrant said “same-sex couples must be afforded all of the benefits the State has linked to marriage and freely grants to opposite sex-couples.”

According to FOX 13, the suit involved an unnamed same-sex couple from southern Utah and a heterosexual couple with whom a surrogacy agreement was made. The two couples filed a joint petition in the 5th District Court to validate the agreement.

The issue arose when the judge pointed out that Utah law uses gendered language and refers specifically to a mother. The law said explicitly that a gestational agreement could only be entered if “intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child.”

Since neither member of the same-sex couple were women, the judge argued he had no choice but to deny the request. The couple then appealed to the Utah Supreme Court, arguing that since the U.S. granted marriage equality in 2015, the state law was unconstitutional.

The Utah Attorney General’s Office did not oppose the couple’s request, saying the statute should be interpreted to be gender-neutral. The Utah justices then struck down the gendered part of the law.

In his ruling, Chief Justice Durrant explained obtaining a valid gestational agreement to have children is one of the most important benefits to couples who are unable to have biological children. '

“The State has explicitly conditioned this benefit on a petitioner’s marital status; no unmarried couple may obtain one. It is therefore unquestionably linked to marriage," Durrant wrote.

Edwin Wall, the attorney for the couples, did not immediately respond to a request for comment from FOX 13 on Thursday night.

See more at FOX 13.

Editor’s note: The Salt Lake Tribune and FOX 13 are content-sharing partners.

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