William C. Duncan, Senior Fellow at the Sutherland Institute, in his op-ed dated Sept. 24, “A child is not an entitlement, and a uterus is not a commodity,” argues that same-sex couples should not be entitled to become parents through surrogacy. As fierce advocates for equality, we take umbrage with Mr. Duncan’s assertion that same sex parents are worse than opposite sex parents.
Luckily, our nation’s highest court has protected the rights of same sex parents to create families. Even Utah courts have cemented the right to have children through third party assisted reproduction, including surrogacy and the right for same sex spouses to be legal parents.
But as attorneys dedicated to helping families have children through third party assisted reproduction, we wanted to address Duncan’s other questions: Does surrogacy protect the rights of children and surrogates? Should we keep a law that facilitates this contractual arrangement? The answer is a resounding Yes. The rights of children, surrogates and intended parents are best protected through the use of state statutes like Utah’s Gestational Agreement statute.
Utah law provides a clear path to legal parenthood for intended parents, but imposes many important requirements for the protection of all parties. For example, the law requires the court to review surrogacy agreements to confirm that there are adequate provisions for all reasonable medical expenses, that any payments made under the agreement are reasonable, and that the surrogate retains the right to make decisions to safeguard her health and the health of the fetus.
The law also requires the court to verify that there is a medical reason for utilizing a surrogate, that the intended parents meet the same standards of fitness as adoptive parents, that all parties have undergone counseling to discuss the surrogacy arrangement, and that the surrogate is not receiving governmental financial assistance.
These are just a few of Utah’s legal requirements. If the court is not satisfied that the statutory requirements have been met, then parties’ surrogacy contract is unenforceable and the intended parents may not become the child’s legal parents. As fellows of the Academy of Adoption and Assisted Reproduction Attorneys (AAARA), we follow an added layer of ethics designed to provide further protections to the parties and to ensure the surrogate and her spouse have informed consent.
At the end of the day, surrogates, children and intended parents are best protected with the current statute applied in a gender neutral way. Couples seeking to build their family through surrogacy spend significant time, money, thought and effort trying to have a child and planning for that child’s future. These couples are willing to open their lives up to judicial scrutiny to demonstrate their strong desire and fitness to become parents. They have spent significant time and financial resources to achieve their dream of a family with the person they love.
Utah culture relies on our strong families. For the past 12 years, Utah’s surrogacy statute has helped many married couples build their family through surrogacy, while providing protection to all parties involved in the process. We believe all families, regardless of gender or sexual orientation, should be given equal opportunity to use surrogacy to fulfill their dream of having a child.
Lauren Barros is an attorney in Salt Lake City, focusing on family law and assisted reproduction law. Damian Davenport is an attorney in Salt Lake City, focusing exclusively on assisted reproduction law. Both are fellows of the Academy of Adoption and Assisted Reproduction Attorneys.