Senate strikes discriminatory language from Utah surrogacy law

The Utah Legislature has voted to strike unconstitutionally discriminatory language from a state law that purports to bar married gay male couples from using a surrogate to have a child.

Rep. Patrice Arent’s HB234 is a fairly simple “housekeeping” bill which updates state law governing surrogacy contracts to comply with a recent unanimous opinion by the Utah Supreme Court.

Last August, the justices ruled one portion of the law unconstitutional under the 14th Amendment’s equal protection and due process clauses because it allowed gestational agreements only if one of the parents is a woman, excluding same-sex male couples.

“What this bill simply does is delete the section of the code that the court found unconstitutional and severable from the rest of the statute,” said Arent.

The Utah Senate on Thursday gave final approval to the measure on a 24-1 vote after unanimously passing the House previously.

The sole dissenter during the bill’s journey through the Legislature has been Sen. Lyle Hillyard, the sponsor of the original 2005 law making surrogacy legal in Utah for married couples.

Hillyard, R-Logan, two years ago unsuccessfully attempted to repeal the entire law after judges started interpreting the law to apply to LGBTQ couples and saying he had made a promise to scrap the law if courts began changing it.

This year he has argued vehemently that passage of Arent’s simple amendment would open the door to horrendous abuses. Specifically, Hillyard expressed concern that it would directly lead to problems he referred to as “stockbroker wives.”

“By taking this out you now open the area that a stockbroker wife — a wife who, for whatever reason, doesn’t want to be bothered with a pregnancy and can simply hire and have it done," Hillyard warned in an earlier committee hearing.

He also raised the hypothetical of a “rich couple” that pays $50,000 for a surrogate only “to discover it’s a boy and they wanted a girl, so they do an abortion.”

Hillyard said he heard of such instances years ago while working on the issue with the Uniform Law Commission. “I heard stuff that just turned my hair,” Hillyard said.

After Hillyard made several references to the “stockbroker wife” phenomenon, Sen. Luz Escamilla questioned whether it was a legitimate concern.

Surrogacy “is an issue I’ve been working on as someone who suffered infertility for 10 years.... I never heard that,” said the Salt Lake City Democrat.

That was echoed by Tonya Canaday, of the Utah Fertility Center, who said she’s been working on surrogacy agreements for 12 years.

“I have never heard of a stockbroker wife — never,” Canaday said. "Women want to carry their own babies if they’re able to.... Same sex couples obviously don’t have that opportunity. But women want to do this.

“They go through grieving and counseling when they have to use a gestational carrier, so with all due respect, it’s not something that we even have a problem with — stockbroker wives — and I’ve helped hundreds of families with this, families across the country and in Canada.”

During floor debate on Wednesday, Hillyard again raised the “stockbroker wife” argument, though he described it as the “stockbroker mother” or “stockbroker woman” concern and attempted to thwart the amendment with a substitute bill. While he acknowledged testimony in committee that Utah had no such problem, he referred to the years-old discussions of the Uniform Law Commission.

“We heard lots of horror stories that we do not want in this state.”

HB234 Senate sponsor Todd Weiler successfully countered Hillyard’s arguments, as Arent had in the earlier hearing.

“The world has changed a lot since 2008,” Weiler said.

2 p.m. Thursday: This story has been updated to reflect final Senate passage.