In re Gestational Agreement
2019 UT 40 (2019)
Rule of Law:
States cannot deny married same-sex couples the same governmental rights and benefits linked to marriage that are afforded to married opposite-sex couples, as such denial violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Facts:
- N.T.B. and J.G.M. are a married same-sex male couple.
- N.T.B. and J.G.M. wish to become parents.
- D.B. and G.M. are an opposite-sex married couple.
- D.B. and G.M. entered into a written gestational surrogacy agreement with N.T.B. and J.G.M., where D.B. would act as the gestational surrogate, carrying a fertilized embryo that contains the genetic material of one of the intended parents.
Procedural Posture:
- Petitioners (N.T.B., J.G.M., D.B., and G.M.) filed a joint petition in the Fifth District Court, St. George, requesting validation of their gestational agreement pursuant to Utah Code sections 78B-15-801 through 809.
- The district court denied the petition, concluding that Utah Code section 78B-15-803(2)(b) required an 'intended mother' to be a woman, and since neither intended parent was a woman, the petition could not be granted.
- Petitioners appealed the district court’s decision.
- The court of appeals certified the case to the Utah Supreme Court.
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Issue:
Does Utah Code section 78B-15-803(2)(b), which requires an 'intended mother' to be medically unable to bear a child as a prerequisite for validating a gestational agreement, violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment by denying married same-sex male couples a marital benefit afforded to opposite-sex couples?
Opinions:
Majority - Chief Justice Durrant
Yes, Utah Code section 78B-15-803(2)(b) is unconstitutional because it denies married same-sex male couples a marital benefit freely afforded to opposite-sex couples. The court first rejected the Petitioners' and the State's argument that the word “mother” in Utah Code section 78B-15-803(2)(b) should be interpreted in a gender-neutral way to mean “parent.” The plain meaning of “mother” is “female parent,” and an examination of other provisions within the Utah Uniform Parentage Act clearly demonstrates the legislature's intent for “mother” to be a distinct, gender-specific term linked to the female gender and the physical act of carrying and giving birth. A gender-neutral interpretation would nullify the “intended mother” requirement, which would be inconsistent with the manifest intent and context of the statute. Therefore, the canon of constitutional avoidance could not be applied. The court then addressed the constitutional challenge, holding that the “intended mother” requirement violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as established by Obergefell v. Hodges and Pavan v. Smith. The validation of a gestational agreement is a marital benefit (explicitly conditioned on marriage in Utah Code section 78B-15-801(3)). The requirement that medical evidence show an intended mother is unable to bear a child creates disparate treatment, as married same-sex male couples cannot fulfill this condition (since neither partner is an “intended mother”). This denial of a marital benefit to same-sex couples on terms different from opposite-sex couples is unconstitutional. Finally, the court held that the unconstitutional subsection 78B-15-803(2)(b) is severable from the remainder of the Act. The other ten requirements for validating a gestational agreement remain operative and continue to serve legitimate legislative purposes, such as protecting the well-being of the unborn child and ensuring parties comprehend the agreement.
Concurring - Justice Pearce
I concur in the result that the Utah Supreme Court may constitutionally review and validate gestational agreements and that Utah Code section 78B-15-803(2)(b) is unconstitutional. However, I write separately to highlight jurisdictional and separation of powers questions. I question the majority's assertion that the Utah Constitution generally requires 'adversariness' as a prerequisite for judicial power, noting that historically Utah courts presided over many non-adversarial proceedings (e.g., adoptions, name changes, probate). I argue that prior case law does not squarely establish adversity as a constitutional requisite. I also raise concerns about the majority's statement that courts are 'constitutionally limited to wield only judicial power,' suggesting that branches of government might perform duties outside their core spheres if those duties do not unconstitutionally infringe on another branch's exclusive functions, under the In re Young test. I caution against broad interpretations of constitutional limits without deeper originalist inquiry into the meaning of the Utah Constitution.
Concurring - Associate Chief Justice Lee
I concur fully with the majority opinion, including its justiciability analysis and treatment of the merits. I write separately to address the points raised by Justice Pearce. I affirm that the general requirement of 'adversariness' is deeply rooted in Utah law and Anglo-American jurisprudence, citing Blackstone and numerous Utah cases that have consistently reinforced this principle as central to judicial power. I distinguish historical non-adversarial proceedings like adoptions and probate as in rem actions, which are functionally adversarial by adjudicating potential claims against a res, or as limited exceptions like name changes. I defend the majority's stance that courts are constitutionally limited to wielding only 'judicial power.' I interpret Article V of the Utah Constitution as drawing a distinction between the powers of the branches of government (defined by Articles VI, VII, and VIII) and the limitations on 'persons' within those branches (where the In re Young framework applies). I contend that Justice Pearce's proposed reading of In re Young is logically circular and could lead to unconstitutional outcomes, such as compelling courts to issue advisory opinions, which are forbidden by the Utah Constitution.
Analysis:
This ruling significantly reinforces the principles of Obergefell and Pavan, solidifying the legal equality of same-sex marriage in Utah and setting a strong precedent for other states with similar laws. It demonstrates that states cannot indirectly discriminate against same-sex couples by creating barriers to marriage-linked benefits, even when those barriers appear facially neutral or based on traditional biological definitions. The decision emphasizes the importance of full and equal access to marital benefits, pushing states to review and update legislation that may inadvertently create discriminatory effects based on outdated gender-specific language. It also clarifies the Utah Supreme Court's understanding of judicial power and the separation of powers in the context of non-adversarial proceedings, building upon existing jurisprudence regarding justiciability.
