The Utah Supreme Court ruled on August 1 that a state law authorizing judicial approval of gestational surrogacy contracts was unconstitutional to the extent that it excluded married same-sex couples from being able to enter into an enforceable gestational surrogacy contract. Finding that the offending provision is “severable” from the rest of the statute, the court sent the case back to a trial court for approval of the surrogacy agreement. The case is In re Gestational Agreement, 2019 Westlaw 3521540, 2019 UT 40.
The opinion by Chief Justice Matthew B. Durrant refers to the parties by their initials. N.T.B. and J.G.M., a gay male married couple, wanted to make an enforceable gestational surrogacy contract with D.B. and G.M., a different-sex married couple. They had the appropriate papers drawn up and submitted them for approval to District Judge Jeffrey C. Wilcox in St. George.
Under Utah’s law governing gestational surrogacy, only married couples can make an enforceable gestational surrogacy contract, and for the contract to be legally valid, a judge must find that it meets a multi-part statutory test. The intended parents must be a married couple, and the proposed gestational surrogate must be a married woman who has already borne at least one child and whose husband consents to the arrangement. The statute does not specify that the intended parents must be a different-sex couple, but when this state was enacted in 2005, Utah had a constitutional provision banning same-sex marriages, so clearly the legislature was thinking of different-sex couples when it approved the statute.
In order for the judge to validate the agreement, he or she must find that “medical evidence shows that 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.” That is, Utah legislators did not want to validate surrogacy agreements where the intended parents wanted to pay somebody to bear their child for reasons of convenience, but only for reasons of medical necessity.
Taking this provision literally, Judge Wilcox reasoned that the statute’s use of the words “mother and her plainly refer to a woman,” so because “neither of the legally married intended parents are women the court must deny their petition.” The judge rejected the petitioners’ argument that he should apply a gender-neutral interpretation to the statute, or that denying the married gay couple the right to make a valid gestational surrogacy contract was a violation of their constitutional rights.
They appealed the ruling, and the state’s Court of Appeals certified the case to go directly to the Supreme Court.
The Supreme Court faced several issues. First, since the state was not a party and filed an amicus brief urging the court to interpret the statute to allow this contract to be validated, there was no traditional “case or controversy.” Thus, the court had to confront the question whether it had jurisdiction over this case. Chief Justice Durrant devoted a considerable portion of the opinion to that question, finding that in the field of family law there were various circumstances in which courts decide essentially uncontested cases because of statutory requirements for the exercise of judicial judgment, and this case fit easily into that exception to the general requirement that courts confine themselves to resolving disputes between contesting parties. His opinion resulted in two members of the court writing concurring opinions focused solely on the jurisdiction issue, but the outcome had unanimous support of all the judges.
The second issue for the court was whether it could use a gender-neutral interpretation of the statute to get around the literal requirement found by Judge Wilcox that one of the intended parents must be a woman who is unable to bear a child for medical reasons.
The petitioners relied on a general “rule of construction” in the Utah code that “a word used in one gender includes the other gender.” Judge Wilcox had acknowledged this, but noted that the same statute provides that the general rules of construction “shall be observed, unless the construction would be: (i) inconsistent with the manifest intent of the Legislature; or (ii) repugnant to the context of the statute.” Wilcox found this proviso applicable, and so did Chief Justice Durrant.
Certainly, the intent of the legislature when the statute was enacted was to override the general common law rule against enforcement of surrogacy agreements, but only for a narrow range of cases in which traditionally-married couples who were unable for medical reasons to have a child without the assistance of a surrogate could make an enforceable surrogacy agreement subject to judicial oversight to protect the interests of all parties. A judge had to approve the agreement to ensure that all interests, including those of the surrogate and the resulting child, were protected.
“Because the plain and ordinary meaning of the word ‘mother’ is ‘female parent,’” wrote Durrant, “we are bound, as the district court concluded it was, to read the statute as requiring that one of the intended parents be a female parent.” He noted that following the state’s and the petitioners’ argument that the gender neutral construction rule should be followed, but this would come within both terms of the proviso: inconsistent with legislative intent and “repugnant” to the context of the statute. He pointed out that a gender neutral reading could provide results clearly outside of the bounds that the legislature wanted to place on the use of gestational surrogacy. If the words “intended mother” are read to mean “intended parent” without regard to gender, then a different sex couple could enter into a gestational surrogacy contract by showing that the husband is unable to bear a child. “Because every opposite-sex couple could make this showing automatically,” wrote Dunnant, observing parenthetically that “every opposite-sex couple contains a male member and obviously a male cannot bear a child,” then this gender-neutral interpretation “would write the intended mother requirement out of the statute.” Clearly, Dunnant has missed the occasional press reports about transgender men bearing children!
In any event, the court was unwilling to adopt a gender-neutral construction of the statute, leading to the next question faced by the court: Does the requirement that the one of the intended parents be a woman violate the constitutional rights of the same-sex couple? Here the court easily and unanimously found that it does under the U.S. Supreme Court’s decisions in Obergefell v. Hodges and Pavan v. Smith. In the aftermath of the Obergefell decision, issued on June 26, 2015, lower courts had to decide whether Obergefell was a narrow decision, merely requiring that states allow same-sex couples to marry, or a broad decision under which the marriages of same-sex couples must be treated the same as other marriages under state law.
Justice Anthony Kennedy’s explanation in Obergefell of why the right to marry is a “fundamental right” did more than just imply that same-sex marriages had to enjoy equal rights, but some lower courts did not get that message. The Arkansas Supreme Court, for example, ruled in Pavan v. Smith that the state could refuse to put the names of both women in a married couple on the birth certificate of their child because only one of the women was “biologically related” to the child. The U.S. Supreme Court reversed. Since the husband of a woman who gives birth is automatically listed on the birth certificate as a parent of the child, so must be a same-sex spouse, because the 14th Amendment requires that all marriages have equal rights.
Durrant found this clearly applicable to the present case. The court found that the Utah statutory requirement that validation of a gestational agreement requires that at least one of the intended parents be female “squarely violates Obergefell in that it deprives married same-sex male couples of the ability to obtain a valid gestational agreement – a marital benefit freely provided to opposite-sex couples. Under the statute, married same-sex male couples are treated differently than married opposite-sex couples. Because under Obergefell same-sex married couples are constitutionally entitled to the ‘constellation of benefits that the States have linked to marriage,’ we hold the intended mother requirement . . . unconstitutional.”
This brought the court to the last question. Was the entire surrogacy statute thus rendered unconstitutional, or could the statute be saved be severing the provision concerning the intended mother’s reproductive capacity and enforcing the statute without that provision for applications by same-sex couples?
The court noted that the legislature did not include an express severability provision in the statute, so the court was left to apply the general rule that a statute should be saved from being struck down on constitutional grounds if it was feasible to do so, and the court found it was feasible to do so in this case. Durrant pointed out that the statute required the district court to make findings on eleven different issues. Subtracting this one left ten other issues, such as whether the consideration paid to a surrogate is “reasonable,” whether the surrogate has had a successful pregnancy in the past, whether a home study shows the intended parents meet the “standard of fitness applicable to adoptive parents” and so forth. “Striking the intended mother requirement from this list does not reduce the significance of these other required findings,” he wrote. “The district court should still be required to make findings on each of the additional ten conditions. Severing the intended mother requirement from the statute does nothing to affect the operability of the remaining portions of the statute.” Indeed, the court found that severing the intended mother requirement does nothing to “undermine” the purpose of the other provisions intended to protect the surrogate, the intended parents, and the child.
The parties are represented by Edwin S. Wall and Damian E. Davenport of Salt Lake City. Utah Attorney General Sean D. Reyes, Solicitor General Tyler R. Green, and Assistant Solicitor General Brent A. Burnett submitted an amicus brief encouraging the court to adopt a gender-neutral interpretation of the statute, so as not to require a constitutional ruling.
This opinion is an important contribution to the growing body of cases adopting a broad construction of the precedential power of Obergefell v. Hodges and the Supreme Court’s subsequent decision of Pavan v. Smith.