SALT LAKE CITY — The Utah Supreme Court has struck down a portion of law that banned same-sex couples from entering into gestational agreements to have children.
In a ruling on Thursday, 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.”
The case involved an unnamed gay couple from southern Utah who entered into a surrogacy agreement with a heterosexual couple. The four filed a joint petition in 5th District Court to validate the agreement. But the judge expressed concern about Utah law that explicitly stated it could only be if the “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.”
The judge denied the couples’ petition, arguing that the law’s use of the words “mother and her plainly refer to a woman” and that because neither of the legally married intended parents were women, he had no choice. The couples appealed to the Utah Supreme Court challenging the constitutionality of the law in light of marriage equality being granted nationwide in 2015.
In the case, the Utah Attorney General’s Office did not oppose the couples and, in fact, told the Court that the statute should be interpreted to be gender-neutral. But the legislature was explicit in its use of “mother,” “birth mother,” and “woman,” the Court said.
