GESTATIONAL SURROGACY LAW UTAH
Gestational Surrogacy is permitted by Utah Code Ann. § 78B-15-801 (2008), which permits gestational surrogacy for married intended parents. Unmarried couples and single parents are not included under the statute and are not afforded any of its protections.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Utah, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Utah.
Is Gestational Surrogacy Legal in Utah?
Yes. Gestational surrogacy is legal but only for married couples, as stated in a 2008 statute.
Is Traditional Surrogacy Legal in Utah?
Yes. Traditional Surrogacy is permitted in Utah because no statute or published case law prohibits it. However, the Utah surrogacy statutes do specify that a surrogate’s eggs “may not be used in the assisted reproduction procedure.” As a result, traditional surrogacy is not protected under Utah’s surrogacy laws and is thereby a riskier practice in the state. For this reason, most surrogacy attorneys will not work with traditional surrogate arrangements.
Is Compensated Surrogacy Legal in Utah?
Yes. Paying a gestational surrogate a base compensation in a Utah surrogacy is addressed in state laws and is considered legal. This is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a Utah Surrogacy Contract
Utah surrogacy laws specify that intended parents, any donors, a surrogate and her husband (if married) can enter into a gestational surrogacy agreement in this state. These laws also set requirements for parties participating in a Utah surrogacy which include:
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Intended Parents must:
- Be married
- Be 21 years of age or older
- Have completed a home study, unless waived by the court
- Participate in mental health counseling prior to the contract
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Surrogates must:
- Not be receiving state assistance
- Be 21 years of age or older
- If married, her husband’s sperm cannot be used in the embryo
- Participate in mental health counseling prior to the contract
Both intended parents and their surrogate must be represented by separate surrogacy attorneys for the drafting of the contract to ensure both parties’ interests and rights are protected. These attorneys will negotiate a contract that addresses at least the following:
- The rights and responsibilities of each party
- Any potential risks and liabilities and the steps to take should they occur
- Surrogate compensation and other financial information, like surrogacy insurance
- Agreements on sensitive issues like selective reduction and termination
- Contact expectations
- And more
Once the contract has been finalized, signed by both parties, and once a court approves the terms of the gestational surrogacy contract, it is enforceable in a court of law. Only then can the medical process of surrogacy begin.
Determining Legal Parentage in Utah
Once a surrogacy contract is approved (before the baby is born), married parents can obtain a pre-birth parentage order regardless of the genetic connection to the child; these orders are issued even for married couples who have used a donor egg or donor sperm in their embryo. However, parentage orders are generally not issued to unmarried couples or individuals.
Same-Sex Surrogacy in Utah
Q: Is Same-Sex Surrogacy Legal in Utah?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Utah?
A: No. There are no additional laws impacting same-sex parents in this state.
FAQ’s
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Utah?
A: Yes. Surrogacy Contracts are enforceable as long as the Utah surrogacy contract meets the requirements stated above.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Utah?
A: No. International intended parents are subject to the same Utah surrogacy laws as domestic intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: Unmarried intended parents and single intended parents pursuing surrogacy in Utah would need to complete an adoption after birth since the Utah surrogacy laws only apply to married intended parents.
Q: Does Utah Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: No. Utah does not allow second-parent adoptions. Stepparent adoptions; however, are available to married couples.
Q: If Intended Parents Cannot Complete a Second Parent Adoption, How Can Unmarried Non-biological Intended Parents Protect their Parental Rights?
A: Utah surrogacy laws and adoption laws make it fairly complicated for unmarried couples of intended parents to establish their parental rights to a child born via surrogacy. Therefore, these couples must either get married in Utah to complete a stepparent adoption, or they must choose to complete their surrogacy in another state where they can obtain a pre- or post-birth parentage order.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: As long as intended parents who use a donor egg, sperm or embryo are married, they can still obtain a pre-birth order, regardless of their genetic connection to their child. Single or unmarried intended parents cannot.
REPRODUCTIVE LAW PRACTITIONERS
Damian E.Davenport, P.C.
Salt Lake City, UT
damian@davenportlaw.net
(801) 531-6195
Delavan J. Dickson
Provo, UT
del@deldicksonlaw.com
(385) 202-4191
Lori D. Fowlke, Esq.
Provo, UT
lorie@ssmlegal.com
(801) 375-5600
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