Is Surrogacy Legal in Utah? What Intended Parents Need to Know
Yes, surrogacy is legal in Utah. However, under Utah’s legal framework, certain conditions must be met, and not all types enjoy the same protections.
Surrogacy is regulated by Utah Code § 78B-15-801 and is permitted for married intended parents. A 2019 update clarified that this applies to all married couples, regardless of whether they are in a heterosexual or same-sex relationship.
Surrogacy is subject to strict regulation, and intended parents must take several steps to comply with surrogacy laws. Utah laws also raise questions, including what rights do an unmarried heterosexual couple or same-sex couple have? What about intended parents who are single or international intended parents?
In this article, we will explore how to navigate Utah’s surrogacy laws and the support a family law attorney can provide.
Understanding Utah Laws on Surrogacy
To understand Utah’s surrogacy law, it is important to understand the difference between traditional surrogacy and gestational surrogacy.
Traditional surrogacy uses the surrogate’s own eggs. This makes her the child’s biological mother. This form of surrogacy involves a different medical procedure and raises complex legal questions about legal parentage.
Gestational surrogacy involves an assisted reproduction procedure. This uses an egg and sperm from a donor, often from the intended parents. The embryo is created using IVF and then transferred to the surrogate. Gestational pregnancy is fully protected by Utah law.
This background can help us understand where intended parents stand when considering surrogacy arrangements.
Considerations around traditional surrogacy in Utah
Utah law does not specifically comment on traditional surrogacy. However, Utah Code § 78B-15-801 says the following about gestational agreements, which are contracts drawn up to formalize surrogacy arrangements: “The gestational mother’s eggs may not be used in the assisted reproduction procedure.”
Traditional surrogacy involves the use of the gestational mother’s eggs. This means that published case law prohibits creating an enforceable gestational contract via traditional surrogacy. So, while no statute explicitly prohibits traditional surrogacy, it is not protected by Utah’s surrogacy laws.
Those considering the traditional surrogacy route should first discuss their legal options with an experienced Utah family law attorney. A lawyer can discuss the best way to proceed with the client’s best interests and those of the unborn child in mind.
The Requirements for a Utah Surrogacy Contract
The surrogacy process in Utah begins when the intended parents file to have a gestational surrogacy agreement validated before the baby is born. After the baby is born, the court will order the Utah Office of Vital Records to issue a birth certificate with the names of the intended parents.
General requirements for the gestational agreement
Under Utah law, the parties to a gestational agreement are:
- The prospective gestational mother (the woman who will give birth to the child)
- Her spouse (if she is married)
- The donor or donors (of egg and sperm)
- The intended parents
All parties must be at least 21 years old. Also, if the intended gestational mother is currently receiving Medicaid or other forms of state assistance, she would not qualify to be a party to a surrogacy agreement.
Medical needs and genetic connections
Many people pursue surrogacy because they are unable to carry their own children. However, Utah surrogacy laws do not require intended parents to prove there is a medical need for surrogacy. Still, some consider it to be best practice only to pursue surrogacy under these circumstances. A qualified Utah family law attorney can explain your rights and advise you based on your personal circumstances.
Additionally, unlike some states, Utah does not require the intended parents to have a genetic connection with the unborn child. Intended parents can also choose their own surrogate. Some choose to partner with a surrogacy agency to assist with finding a suitable gestational carrier.
Residency requirement
Neither the intended parents nor the gestational mother needs to be a permanent resident of Utah to file a gestational surrogacy agreement. However, Utah law does require either the mother or the intended parents to have resided in the state for a minimum of 90 days.
International intended parents must follow the same Utah laws as US citizens. However, someone in this situation would be wise to seek advice from a family law attorney before embarking on the surrogacy process for guidance on procedures for returning to his or her home country with the child following the birth.
Marriage requirement
Only married intended parents can become parties to a gestational agreement, but this applies equally to heterosexual and same-sex couples.
An unmarried heterosexual couple or same-sex couple is not permitted to sign a surrogacy agreement. The marriage requirement also means that single people may be excluded from being prospective parents.
However, this does not mean that unmarried couples or single people can’t become parents through surrogacy in Utah. Depending on the circumstances, some options may include:
- Parent adoption
- Second-parent adoption
- Stepparent adoption
- Full adoption, if neither intended parent has a genetic connection to the child
A Utah family law attorney can discuss your legal rights and advise you on whether there is a way forward.
Provisions of the Gestational Agreement
Once validated, a gestational agreement establishes 3 important legal points:
- Assisted reproduction: The prospective gestational mother agrees she will become pregnant by means of assisted reproduction
- Relinquishment of rights: All parties other than the intended parents, including the gestational mother, her spouse, and the donors, relinquish all parental rights to the child conceived using assisted reproduction
- Parental rights: The intended parents become the legal parents of the child born via surrogacy
The next stage in the process is to appear before a tribunal that will evaluate the surrogacy agreement.
Hearing to Validate the Gestational Agreement
If the tribunal is satisfied that the requirements above have been met, the judge may validate the gestational agreement. However, there are further requirements that may apply before the intended parents receive the go-ahead to start the surrogacy journey, such as:
- Home study: Unless waived, the intended parents must undergo a home study to ensure they meet the standards that also apply to potential adoptive parents.
- Counseling: All parties must have engaged in counseling with a licensed mental health professional. He or she must sign an affirmation that all involved understand the consequences of the surrogacy arrangements.
- Voluntary agreement: The tribunal must be satisfied that all parties are entering into the surrogacy agreement of their own free will.
- Pregnancy and health: The prospective gestational mother must have had at least 1 prior pregnancy and delivery. Additionally, the judge must be satisfied that bearing another child will not create an unreasonable risk to the health of the mother or the unborn child.
- Healthcare provision: Adequate provision must have been made to cover the healthcare expenses related to the gestational agreement.
- Fair compensation: Utah allows altruistic surrogacy, in which the gestational mother receives no financial compensation for bearing the child. However, it also allows gestational mothers to receive compensation. The amount being paid to the prospective gestational mother must be disclosed to the tribunal, which will decide whether it is reasonable.
- Donors: To avoid questions about parental rights, it is not permitted to use the eggs of the prospective gestational mother or the sperm of her husband in the assisted reproduction procedure.
A family law attorney is well-placed to advise intended parents on the evidence to present at the hearing. The tribunal will carefully review all the evidence presented and make a decision. The decision can only be reviewed if there has been an abuse of discretion.
The medical process of surrogacy can only begin once the Utah surrogacy contract has been validated. Going ahead with an informal agreement could put all parties at risk in the future, including the unborn child. You can protect your legal rights by talking to an experienced Utah family law attorney before the surrogacy process begins.
How a Family Law Attorney Can Help
The requirements for completing the surrogacy process in Utah can seem complex, but an experienced family law attorney can answer your questions and help in the legal decision-making process.
A family lawyer can help potential parents navigate surrogacy in Utah in the following ways:
- Provide an objective, outsider’s perspective combined with legal knowledge and experience
- Help you navigate legal issues that arise relating to the suitability of potential gestational carriers and donors
- Assist with financial negotiations
- Draft the necessary documentation
- Address matters relating to dispute resolution
Turn to Brown Family Law for Advice on Surrogacy in Utah
The surrogacy journey begins long before conception. As soon as you begin seriously considering this route, seek qualified legal counsel from the experienced attorneys at Brown Family Law.
It is our values that make us unique and have earned us the trust of our many clients. We strive for excellence in the services we provide to all our clients. We pride ourselves on our honesty, equality, and impactfulness in delivering on our clients’ expectations. Additionally, our policy of open, ongoing communication means you always know where you stand.
If you are ready to understand your legal rights related to surrogacy in Utah, schedule a consultation today. Call 801-685-9999 or contact us online to get the answers and advice you need.
