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A gay, married Utah couple is asking the state’s highest court to declare a portion of the state’s surrogacy law unconstitutional. The current law denies gay men the right to have biological children through surrogacy with a specific requirement that the “mother” be medically unable to carry a child.
Legal experts say that this is a novel case for Utah.
“I think these are new arguments and there has yet to be a court [in] the country that has struck down a surrogacy law on the grounds that the discrimination is based on sexual orientation or gender,” explained Professor Douglas NeJaime at Yale in an interview with The Salt Lake Tribune.
Law Professor John Culhane of Widenar University focused on the legal hurdles the LGBTQ community continues to face in spite of the legalization of gay marriage in 2015.
“If marriage equality really means what the Supreme Court said it does, then that should mean this gay married male couple should have the same entitlements as others,” said Culhane.
Legal counsel for the couple argue that the current law violates due process. They also believe that gender-specific terms need to be removed wherever marital benefits are statutorily reference in the wake of Obergefell.
“The legislative objective was to afford the marital benefit for intended parents to have their own genetically related children not to improperly discriminate against married same-sex male couples,” the couple’s attorneys stated in the court documents.
The surrogacy law in Utah was created ten years before gay marriage became legal in the United States, and an amendment is needed in order to avoid unconstitutional discrimination.
After the courts denied the couple’s petition to validate their surrogacy agreement, they were deeply hurt.
“Straight couples don’t experience this,” the couple said.