## Facts

- Two married couples entered a gestational surrogacy agreement under Utah’s gestational-surrogacy statute: a married same-sex male couple as intended parents and an opposite-sex married couple in which the wife would act as gestational carrier.
- Utah law provides that a gestational agreement is unenforceable unless validated by a court and authorizes validation only if specified statutory conditions are satisfied.
- The intended parents and prospective gestational mother jointly petitioned the district court to validate the agreement.
- One statutory condition required “medical evidence” that the “intended mother” is unable to bear a child or cannot do so without unreasonable risk to her health or to the unborn child.
- The district court denied validation, reasoning that “mother” and “her” refer to a woman and neither intended parent was female.
- The intended parents appealed; the appeal was unopposed, and the State appeared as amicus curiae supporting a statutory-interpretation argument.
- The case was certified for decision by the Utah Supreme Court.

## Issues

1. Whether the gestational-surrogacy statute’s references to “intended mother” and “her” may be read gender-neutrally (e.g., as “intended parent”) under a general canon that words in one gender include the other.
2. Whether applying the statute to categorically exclude same-sex married male couples from validation would violate constitutional guarantees of equal treatment for same-sex marriages.
3. What remedial construction, if any, is appropriate to avoid unconstitutional application while preserving the statutory scheme.

## Decision

- The Utah Supreme Court reversed the denial of the petition and remanded for further proceedings.
- The court rejected the proposed purely textual construction that would redefine “intended mother” to mean “intended parent,” because doing so would nullify an express statutory prerequisite tied to medical evidence regarding an “intended mother.”
- The court held that, in light of constitutional requirements of equal treatment for same-sex marriages, the statute must be administered so same-sex married couples have access to gestational-agreement validation on the same terms as opposite-sex married couples.
- The district court erred by denying validation solely because the intended parents were both male.

## Legal Principles

- A general interpretive rule that gendered terms include the other gender cannot be applied where it would erase an express substantive condition, or where it is inconsistent with legislative intent or repugnant to statutory context.
- Courts apply constitutional-avoidance principles to prefer an interpretation or application that avoids unconstitutional discrimination when a statute can be preserved through an equal-treatment construction.
- After federal constitutional decisions recognizing same-sex marriage, state statutes governing marriage-related benefits and family formation must be applied without treating same-sex marriages as inferior or categorically ineligible.

## Conclusion

The Utah Supreme Court held that the gestational-surrogacy statute could not be textually rewritten to remove the “intended mother” medical-evidence requirement, but it must be applied in a constitutionally equal manner so that same-sex married couples are not excluded from gestational-agreement validation solely due to gendered statutory language.


In re Gestational Agreement, 449 P.3d 69 (Utah 2019)