Can gendered language in gestational surrogacy statutes exclude same-sex couples? In re Gestational Agreement Explained

In a landmark decision addressing marriage equality and reproductive rights, the Utah Supreme Court struck down a key provision of the state’s gestational agreement statute that effectively barred same-sex male couples from accessing surrogacy services.

Background and Facts

A married same-sex male couple sought court validation of their gestational surrogacy agreement with a woman and her husband. Under Utah Code section 78B-15-803(2)(b), courts could only validate such agreements upon finding that medical evidence showed “the intended mother is unable to bear a child or is unable to do so without unreasonable risk.” The district court denied the petition, reasoning that the statute’s use of “mother” and “her” plainly referred to women, and since neither petitioner was female, validation was impossible.

Key Legal Issues

The case presented two primary questions: whether the statutory interpretation should read “mother” in a gender-neutral manner, and whether the gendered requirement violated constitutional equal protection principles. The petitioners and the State argued for applying Utah Code section 68-3-12, which permits reading gendered terms to include both genders when consistent with legislative intent.

Court’s Analysis and Holding

The court rejected the gender-neutral interpretation, finding it would contradict the manifest intent of the legislature and be “repugnant to the context of the statute.” The Utah Uniform Parentage Act consistently distinguished between “mother” and “father” as gender-specific terms, and a gender-neutral reading would effectively eliminate the intended mother requirement entirely. However, applying Obergefell v. Hodges, the court held that denying married same-sex couples access to marital benefits violates federal constitutional guarantees. The court found the problematic subsection severable, allowing the remainder of the gestational agreement statute to remain operative.

Practice Implications

This decision reinforces that marriage equality extends beyond ceremony to encompass all benefits states link to marriage. Practitioners should note that courts may resist using statutory construction rules to avoid constitutional issues when doing so would undermine clear legislative intent. The decision also demonstrates the court’s willingness to sever unconstitutional provisions while preserving the remainder of beneficial statutory schemes.