by Madalina Olteanu, Bucharest

by Madalina Olteanu, Bucharest

Utah controversy regarding same-sex couple surrogacy

02 Aug, 2019

by Madalina Olteanu, Bucharest

The topic of same-sex couples raising children has always been present within LGBT-related discussions. This is mainly because even some people who aren’t homophobic have the opinion that kids should not be raised by such couples, as it is thought to be “toxic” for the child’s mental health.

Leaving aside all the arguments against this opinion, it is still true that many states prohibit adoption and surrogacy for LGBT members – among which Utah used to be as well.

It all started in 2017, when a gay couple was denied surrogacy on the grounds that the law only allows it when an “intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child.” This led the judge to the conclusion that surrogacy is only allowed for females.

However, the case was brought to the Supreme Court, as even the Utah’s Attorney General Sean Reyes defended the couple, stating that, in its application, the law should be gender neutral. The couple’s lawyer argued that such a decision violates the US constitution, since it is obviously discriminatory against gay men. Furthermore, in 2015, gay marriage had already been legalized by the Supreme Court.

Although the state attorneys did not appear before the Supreme Court, they submitted a brief that comprised the idea of a gender neutral application of the law.

Chief Justin Durrant declared that “same-sex couples must be afforded all of the benefits the State has linked to marriage and freely grants to opposite sex-couples”, as reported by Fox 13 Salt Lake City. “Obtaining a valid gestational agreement is, in many cases, one of the most important benefits afforded to couples who may not be medically capable of having a biological child. Such an agreement works to secure parental rights to an unborn child and bestows rights and benefits on the intended parents.”

This is not a singular case in Utah – in 2015, after same-sex marriage had been legalized, a lesbian couple sued the state after being denied the right to put both of their names on the child’s birth certificate. In the same year, a judge took a baby girl from a lesbian couple so that the child could live with a heterosexual couple for her own “well-being”. Later on, though, he reversed his decision.

Massachusetts was the first US state to legalize same-sex marriage in 2004, due to the Supreme Court’s decision. Later on, same-sex marriage had become legal in 36 states in America before the nationwide legalization. Even so, although legal steps are being taken towards a better future for the LGBT community, there is still a long way to go.

Hate crimes are just an example of what can make an LGBT member reluctant about admitting their sexual orientation or gender in public. According to the FBI, these have actually been on a rise in the past years, especially against transgender people. Sadly, this leads us to the conclusion that the USA is still not entirely safe for the LGBT community. Hopefully, positive change will come along with the younger generations.