In re Gestational Agreement
449 P.3d 69
Utah2019Background
- Two married men (Intended Parents) and a married opposite-sex couple (prospective gestational mother and her husband) jointly petitioned a Utah district court to validate a gestational-surrogacy agreement under Utah Code § 78B-15-801 to -809.
- Utah law requires, for validation, among other findings, medical evidence that the “intended mother is unable to bear a child or is unable to do so without unreasonable risk.”
- The district court declined to read “mother” gender-neutrally and denied the petition because neither intended parent was a woman; petitioners appealed and the court of appeals certified the case to the Utah Supreme Court.
- Petitioners argued the statute should be read gender-neutrally or, alternatively, that the gendered requirement violates state and federal constitutional guarantees (Uniform Operation of Laws clause, Due Process, and Equal Protection).
- The State (as amicus) urged a gender-neutral reading under Utah Code § 68-3-12, but the Supreme Court concluded that reading conflicted with the Act’s language and structure and therefore declined constitutional-avoidance construction.
- The Court held § 78B-15-803(2)(b) (the “intended mother” medical-evidence requirement) facially discriminates by denying a marriage-linked benefit to married same-sex male couples and is unconstitutional under Obergefell and Pavan; the Court severed the subsection and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "mother" in § 78B-15-803(2)(b) should be read gender-neutrally | Petitioners: "mother" should be read to mean "parent" to avoid constitutional problems | State: statutory construction rule (words in one gender include the other) requires a gender-neutral reading | Court: declined — statutory context and definitions show Legislature intended "mother" = female parent; court must address constitutionality |
| Whether the canon of constitutional avoidance requires reading the statute gender-neutrally | Petitioners/State: apply avoidance to preserve statute | — | Court: constitutional-avoidance cannot override clear legislative intent or render other provisions superfluous; court will confront constitutional challenge directly |
| Whether § 78B-15-803(2)(b) violates federal constitutional guarantees by denying marriage-linked benefits to same-sex couples | Petitioners: denies married same-sex couples a marital benefit, violating Due Process and Equal Protection per Obergefell and Pavan | State waived defense on the merits (filed amicus but did not defend constitutionality) | Court: § 78B-15-803(2)(b) unconstitutional under Obergefell and Pavan because it conditions a marriage-linked benefit on one intended parent being female |
| Whether the unconstitutional provision is severable from the Act | Petitioners: sever and leave remainder operative | — | Court: severable; remaining validation findings are operable and further the statute’s purposes; remand for further proceedings |
Key Cases Cited
- Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (same-sex couples entitled to same legal benefits and protections linked to marriage)
- Pavan v. Smith, 137 S. Ct. 2075 (2017) (states may not withhold marriage-linked parentage recognition from same-sex married couples)
- Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union, 289 P.3d 582 (Utah 2012) (judicial power limits and prohibition on advisory opinions used in justiciability analysis)
- In re Young, 976 P.2d 581 (Utah 1999) (three-part test under Article V for persons exercising functions appertaining to other branches)
- Citizens' Club v. Welling, 27 P.2d 23 (Utah 1933) (judicial power generally understood as resolving controversies between adverse parties)
- University of Utah v. Industrial Commission of Utah, 229 P. 1103 (Utah 1924) (courts lack power to decide abstract questions absent a real controversy)