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.
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?
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
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.
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
Note: This situation typically arises if the child is born outside 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
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? Yes
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.
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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