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There is nothing simple about reproductive law, especially when it comes to gestational surrogacy. Each state in America defines its surrogacy laws differently, and now a married gay male couple is challenging Utah’s current gestational surrogacy law based on constitutionality.

According to Utah’s law, gestational surrogacy is permitted for potential parents who are married to each other, as long as the child is biologically related to one of the parents. The potential parents and surrogate must all  be at least 21 years old, and the surrogate must have already had one successful pregnancy and delivery. This law was written before the 2015 U.S Supreme Court ruling that legalized gay unions around the country and granted same-sex couples the same rights as heterosexual couples.

Now, two married men have become the first to challenge Utah’s surrogacy law since that 2015 Supreme Court decision. Jon and Noel submitted a surrogacy petition to a judge in St. George in 2016 but were denied. They challenged that decision vigorously, and the Utah Supreme Court heard arguments for their case. According to the couple, the Utah law should apply equally to all married couples, male and female alike, or be deemed unconstitutional.  

According to the judge who denied their petition, he felt he had no choice but to follow the language of Utah’s law, which requires medical proof that the intended mother is unable to conceive or carry a child. This terminology automatically bars gay men from having a biological child, despite our country’s recent achievement of marriage equality. The lawyer for Jon and Noel explained that their situation has two potential solutions: the Utah Supreme Court could find the statute discriminatory and declare it unconstitutional, or the Court could direct all other courts to read the law as gender neutral despite references to “mother”.

Jon, Noel, their attorney, and countless other surrogacy advocates hope that this monumental Utah Supreme Court case will help Utah’s law overcome the barrier of discrimination. With the right outcome, same-sex male couples will be able to enjoy equal rights and have their own biological children through surrogacy.

Given how complex surrogacy laws are, especially in their interpretation under other existing state or national laws, it is essential to work with an expert in reproductive law as you pursue your own surrogacy journey. Open Arms Surrogacy and Egg Donation in Bradenton, Florida has led men and women alike through the complex world of assisted reproduction since 2003, so reach out to them for help creating a family of your own. Call (941) 741-4994 to schedule your consultation today!


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