GESTATIONAL SURROGACY IN UTAH

Gestational Surrogacy is permitted by Utah Code Ann. § 78B-15-801 (2008), which permits Gestational Surrogacy for married Intended Parents. In 2020, § 788-803 was amended to clarify that same-sex married couples are covered by the statute permitting Gestational Surrogacy. Under the statute, qualified Intended Parents file with a court to have their Gestational Surrogacy agreement validated pre-birth. Then, post-birth, the court will order Vital Records to issue the birth certificate with the Intended Parents’ names.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes

Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?

• Married heterosexual couple using own egg and own sperm: Yes
• Married heterosexual couple using an egg donor or sperm donor: Yes
• Married heterosexual couple using an egg and sperm donor: Yes
• Unmarried heterosexual couple using own egg and own sperm: No, because the statute only applies to married couples.
• Unmarried heterosexual couples using egg donor or sperm donor : Same as above
• Same-sex couple using either egg donor or sperm donor: Yes, so long as they are married.  Following the Supreme Court denial of certiorari on October 6, 2014, same-sex marriages are performed and recognized in Utah.
• Same-sex couple using both egg and sperm donor: Yes, so long as they are married.
• Single parent using own egg or sperm: No, because the statute only applies to married couples.

Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

• Married heterosexual couple: Yes
• Unmarried heterosexual couple: No
• Same-sex couple: Yes
• Single parent: No

What are the bases for venue? Gestational Carrier or Intended Parent must reside in Utah for jurisdiction, but no venue requirements exist under Utah law.

Do results vary by venue? Yes

Is a hearing required to obtain a pre-birth order? Yes, but the judge has the discretion to waive the hearing, just as the judge has the discretion to waive the home study that the statute requires of all Intended Parents.

Is a pre-birth order possible in Utah based on a Gestational Carrier’s plan to deliver in Utah, if no party lives in Utah? No, the statute requires that the GC or the Intended Parents must have been residents of Utah for at least 90 days before a petition to validate is filed in court.

Will Utah Vital Records honor a pre-birth order from another state? Yes, most likely

What is the typical time frame to obtain a birth certificate after delivery? 24 hours to 2 weeks.

SAME SEX COUPLE

How are same-sex parents named on the final birth certificate? Parent and Parent

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes. To ensure that he is named on the birth certificate, the biological father should file with the court pre-birth, as well as with the paternity registry.

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Utah (i.e., neither of the Intended Parents lives in Utah)?  Yes, so long as they are married.

Will Utah Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate?   Yes

SECOND PARENT & STEPPARENT ADOPTIONS FOR UTAH RESIDENTS

Note: This situation typically arises if the child is born outside of the state. The parents then return to Utah to obtain a second parent adoption or stepparent adoption in Utah.

Will courts in Utah grant second parent adoptions or stepparent adoptions to heterosexual couples living in Utah? Yes
Does the couple need to be married? Yes

Will courts in Utah grant second parent adoptions or stepparent adoptions to same-sex couples living in Utah? Yes

EGG AND SPERM DONATION

TRADITIONAL SURROGACY IN UTAH

Traditional Surrogacy is permitted in Utah because no statute or published case law prohibits it. Utah Code Ann. § 78B-15-801 (2008), cited above for Gestational Surrogacy, explicitly excludes Traditional Surrogacy.

State law information provided by the following attorneys practicing Reproductive Law in this state:

Kathleen McRoberts
kmcroberts@thirdpartyreproduction.com
(208) 214-4585

Lauren Barros
lrb@lrbfamilylaw.com
www.lrbfamilylaw.com
(801) 746-0670

Damian Davenport
info@davenportlaw.net
www.davenportlaw.net
(801) 531-6195

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