All About Utah Surrogacy
Surrogacy is a complex family law subject, so it is wise to get a background on exactly what is involved from the outset. Simply put, surrogacy generally refers to a situation in which a woman carries and gives birth to a child for another individual or couple who cannot, or should not, bear children themselves.
Generally speaking, there are two types of surrogacy arrangements — gestational and traditional. In a gestational surrogacy situation, a woman decides to carry a child for an individual or couple, but the embryo is created through in vitro fertilization using the sperm and egg from the parents. Following the child’s birth, parental rights are assigned to the intended mother and father.
In a traditional surrogacy arrangement, a woman decides to carry and bear a child for an individual or couple, but the child is conceived naturally through sexual intercourse with a man who intends to raise the child. The surrogate’s name is typically included on the birth certificate of the child, but like in gestational surrogacy arrangements, parental rights can be assigned to the intended parents.
Surrogacy has become an increasingly popular option for families across the country, creating a situation in which each member receives the best possible outcome for their unique situation . Most importantly, it allows traditional couples unable to bear children for various reasons to have children. In addition, it can also provide an option for single parents or members of the LGBT community who wish to have children of their own.
The State of Utah governs surrogacy arrangements, and very specific regulations pertaining to surrogacy fall under Utah Code Section 78B-15, also known as the Utah Gestational Carrier Agreement Act. Breaking down these laws can help you further understand your options and requirements for a surrogacy arrangement in Utah.
Utah has undoubtedly gained traction as a state in which a number of surrogacy arrangements occur. While the reasons for this phenomenon remain unclear, many experts believe the culture in Utah — specifically within the state’s large network of religious followers — shares close ties with surrogacy arrangements.
Within that community, a number of accounts exist in which a woman who has had several children or a teenage mother may serve as a surrogate for a relative or friend without the means to have children of their own. Although these relationships are most commonly based upon a close personal connection, without any formal contracts or legal guidance, it highlights a unique and often favorable insight on surrogacy in Utah.
The Legal Landscape for Surrogacy in Utah
As part of the adoption process, parties must meet the state’s requirements for their adoption to be considered finalized. The process is fairly straightforward in Utah.
The legal framework governing surrogacy in Utah is mostly contained in chapter 20-5-102 of the Utah Code Annotated. Some important provisions are as follows:
-The surrogate must be at least 21 years of age.
-The surrogate must complete a medical evaluation by a physician approved by a State Division of Child and Family Services Child Placing Authority prior to entering into a surrogacy contract.
-The intended parents must complete a similar medical evaluation.
-A mental health evaluation of the surrogate and the intended parents is also required.
-Surrogacy contracts may only be between an individual man and woman who are legally married.
-Only a licensed child placing entity may facilitate a surrogacy contract for compensation.
-Unless in exceptional circumstances, the State Division of Child and Family Services Child Placing Authority cannot approve the contract unless (1) the surrogate has given birth to a child previously and (2) the surrogate has completed a surrogate counseling program provided by a licensed, third-party mental health professional and has read and signed a consent agreement to participate in the program.
Who Qualifies for Utah Surrogacy?
While each state has specific laws and eligibility requirements related to surrogacy, parties involved in a surrogacy arrangement must tend to be at least 21 years of age. Intentional parents or their respective spouses must be able to prove that there is medical necessity for using a surrogate and any claims of infertility must be certified by a physician. The medical necessity must be an issue that may reasonably have impacted the ability to carry the pregnancy to term. Many states around the country also require mental health evaluations of the parties involved. The state of Utah has House Bill 268, which states that an individual must be at least 21 years of age and must have given birth at least once with at least one child that is alive. Further, the individual also needs to have had experience caring for the child that she had previously birthed.
How Does the Process of Parentage Establishment Work Legally?
In most surrogacy arrangements, establishing legal parenthood in Utah is a simple matter. The law in Utah permits a person who uses assisted reproduction to establish legal parentage after the child is born based upon a court order (known as a "post-birth order"), but only when one of the following applies: With recent changes in federal law, it is critical that the Intended Parents or one of the Intended Parents using this method of obtaining parenthood be: A pre-birth order, while possible for the gestational surrogacy cases, is much more complicated under Utah law. In a pre-birth order a parent whose sperm or egg is being used to create a child is adjudicated, prior to the birth of the child, as a legal parent of the unborn child. This order will be made without requiring the gestational carrier to surrender the child or to relinquish parental rights, under Utah law. The following criteria are necessary before the court may enter a pre-birth order in Utah: A successful pre-birth order requires court approval and an order issued three to six months before the delivery of the child. There are other less frequently used methods of establishing legal parentage, but those cases are more complicated and not routinely used in surrogacy arrangements.
Agreements and Contracts for Utah Surrogacy
The surrogacy contract is a pivotal component of the surrogacy process. Furthermore, as you will see, surrogacy laws in Utah raise several issues concerning the enforceability of surrogacy contracts. For example, in response to a change in Utah law concerning enforcement of surrogacy contracts, attorneys cannot represent the same party both in the drafting of the surrogacy contract and in the preparation for the adoption process after the child’s birth. Many surrogacy agencies in Utah draft their own contracts. The adoption process must also be handled separately by a different Utah attorney specializing in that area of family law.
The surrogacy contract is a written agreement between the Intended Parents and a Surrogate which will outline the expectations of both parties, set forth financial and other practical matters, Doctor and Hospital want, a timeline, and a complete plan to address all possible scenarios. In Utah, the contract must include provisions addressing the following:
The contract can be negotiated at length. It should be fair to both parties, and it must be enforceable under state law. This is why the contract must be fully vetted by separate lawyers for each party.
Many may wonder whether contracts can be tailored by experienced, seasoned Utah surrogacy lawyers. Yes. Apart from very specific legislative requirements, the surrogacy contract can be individually tailored and can fall well outside of a standardized agency contract. Generally speaking, the more that the parties are protected, the less likely disputes will arise.
Support and Compensation in Utah Surrogacy
The concept of surrogate compensation can often cause confusion among intended parents and surrogates alike. A 2014 article published by the Terri Stoddard, then Director of Operations with the Center for Surrogate Parenting in California, sheds light on the issue. It reads: "A common misconception is that gestational surrogates get paid for every little thing they do, and that in order to maximize the compensation, one must squeeze the surrogate for every penny possible… [S]urrogates are not looking for such compensation. Instead, as with any other job, a surrogate wants to be rewarded fairly for the time she makes available to bring a new life to the world. This should only be one part of the decision to become a surrogate as there are people who have had to go to outside financing to bring their dreams to fruition and understand the sacrifice they must make should an agency take 12 to 16 months and $150,000 to bring the surrogate into contract. The compensation is only a part (albeit very important part) of the surrogacy journey." Compensation is completely separate from your surrogate’s pregnancy. Following a live birth, compensation can come in the form of a check from you and it will be reflected as income on your surrogate’s tax return. An agent or attorney can either act as an escrow agent or ensure that funds are established as part of the agency’s services. Compensation generally follows a fairly standard schedule based upon the surrogate’s pregnancy (singleton , twins or more) and gestational surrogate’s experience; however, the parties can negotiate a compensation plan as part of their agreement. Compensation is typically paid in installments as the surrogate progresses through her pregnancy. Surrogates in Utah receive compensation that immediately follows the birth of a child. Utah law recognizes the status of a gestational surrogate and as a result establishes a requirement of future compensation caps for those agencies/agencies managing a surrogacy contract in Utah. In addition to compensation, whether it is provided through an agency or directly through the intended parent (or parents), the surrogate’s support includes her expenses such as ensuring that she has reasonable medical care and money for daycare (if applicable), prenatal vitamins, housekeeping, maternity clothes, food and housing costs are met, along with additional costs that may arise. Paid maternity leave is a common benefit provided to employees and is fairly consistent in its absence for surrogates. Although not legislatively mandated, most agencies/teams will include the cost of leaving work for a short period of time, which can range from two weeks to a month.
Ethics of Utah Surrogacy
The growing popularity of surrogacy arrangements in Utah has not come without its share of controversy. Public perceptions and ethical debates continue to shape the debate over surrogacy laws. On one side, opponents cite a lack of regulation surrounding surrogate-mother compensation that can lead to exploitation of these women. Others fear that surrogacy will reduce women to baby-making "machines" for couples who either cannot or do not wish to carry a child of their own. Still others believe that surrogates can truly be angels for couples who desperately want to start a family, and that surrogate mothers are courageous, selfless and resourceful women who give a couple a chance at a dream they once thought was not possible. It is true that more regulation, especially in regard to surrogate-mother compensation is needed, but in the end, it is the ethics of the individuals who enter into a surrogacy contract that guide surrogacy in Utah, and as more men and women decide to pursue surrogacy, those ethics will continue to evolve.
Referring to the ethics behind surrogacy law reform, Darren G. Zohar, a legal editor in Utah, points out that in 2016 "the American Bar Association’s Family Law Section sent a letter to the ULC’s Committee on Amendments to the Uniform Parentage Act with several recommendations, including a recommendation that the surrogate should be clearly compensated for her services." Despite this, Zohar states that Utah remains "on the fence" when it comes to surrogate-mother compensation in Utah and that when juxtaposed against the words of the Utah Utah Supreme Court stating that "a child, as a the product of [a] contract, [is] illegitimate," one can see that the state has not resolved this issue (542 P.3d at 177 (quoting Logan v. Williams, 667 P.2d 569, 571 (Utah 1983) (internal quotation marks omitted))).
Another ethical consideration in Utah deals with expected mothers who look to surrogacy during times of emergency, such as illness or death. The Ethics Committee of the American Society for Reproductive Medicine has drawn up guidelines for compelling cases of surrogacy where the expecting mother is terminally ill or dies. In such cases a contract should be drafted before any gamete donation occurs. In the event that the mother does die, her wishes supersede objections by a spouse or family member. It is this sort of contract that is particularly important in Utah, where courts are loathe to transfer custody of a child not born into the world to non-biological parents.
Common Issues in Utah Surrogacy
Utah surrogacy law is fairly straightforward. However, as with any other area of family law, problems in some form or another can easily arise. The most common of these issues surround the contractual agreements between the intended parents and surrogates. Surrogacy contracts should be comprehensive in addressing the following:
In the absence of these clauses, the risk of legal complications increases considerably. For example, financial disputes are arguably the most common issue to arise in Utah surrogacy cases. From the start, intended parents and surrogate carriers need to arrive at a comprehensive agreement regarding how much compensation will be provided and when it will be delivered. If the surrogate mother has already delivered the child when financial compensation is delayed or fails to come together at all, she may legally dispute the lack of payment and attempt to keep the child.
Although Utah state law attempts to prevent surrogate mothers from taking advantage of intended parents, contract disputes often arise in which surrogate mothers seek some form of compensation in exchange for relinquishing her parental rights. For example, she may claim that she will not undergo a c-section unless she is financially compensated for the medical procedure. In such cases, litigation may be required to terminate her parental rights.
The above-mentioned issues are by no means exhaustive. Like all areas of family law, Utah surrogacy law is dynamic and continues to evolve with the times.
Surrogacy Law in the Future in Utah
The landscape of surrogacy laws in Utah is ever-evolving, with potential changes on the horizon that may influence the future of this practice within the state. Currently, Utah statutes facilitate both traditional and gestational surrogacy, with certain provisions aimed at streamlining the process and ensuring legal protection for all parties involved. However, recent trends suggest that the state may consider enacting comprehensive legislation that encompasses all aspects of surrogacy.
Much of the existing legal framework in Utah governing surrogacy is based on older laws that were originally intended to address other areas of family law and reproductive technology. This ad hoc approach has led to a patchwork of regulations that can be challenging for surrogates and intended parents to navigate. As assisted reproductive technology becomes more prevalent and accepted nationally, state legislatures are increasingly recognizing the need for dedicated surrogacy laws that outline the rights and responsibilities of all parties involved.
While there is no certainty regarding when or how such legislative changes may occur in Utah, several trends could propel the state in that direction. For instance, the rise of gestational surrogacy utilizing in vitro fertilization has led to a decrease in traditional surrogate arrangements. As a result, some states are revising their laws to reflect the practical realities of modern combination family building methods.
The growing interest in gestational surrogacy may also encourage advocates to press for reforms in Utah. The past few years have seen a continual increase in the number of surrogacy agencies, gestational carriers, and intended parents residing in Utah. Many of these individuals seek further clarification and support from lawmakers to ensure that gestational surrogacy procedures are legally binding and enforceable.
In addition, the state may look to align with other jurisdictions that have enacted more expansive laws regulating surrogacy. For example, other states provide specific guidelines for compensation, establishment of parental rights, and alternative dispute resolution methods for surrogacy disputes. Utah may consider adopting similar models to establish clear legal parameters for those involved in surrogacy agreements.
Regardless of the timeline or potential outcome of any legislative changes, surrogacy will likely remain a method through which many Utah families build their futures. Utah intends to embrace surrogacy arrangements and all the benefits they bring, from aiding struggling couples to complete their families to providing a much-needed source of income for some Utahns.
Utah’s approach to surrogacy remains open-minded, which demonstrates the state’s willingness to adapt to the ever-changing world of reproductive technology. Legislative advocacy efforts, current trends, and the continued growth of surrogacy in Utah have the potential to shape the future of surrogacy laws in meaningful ways.
Summary: Surrogacy in Utah
In conclusion, there are several important considerations to keep in mind when looking into Utah surrogacy law. Intended parents should be aware of the legal risks and benefits of surrogacy in Utah and work to ensure that their contract for surrogacy is legally sound and enforceable. Surrogates should likewise consult an attorney to ensure that they understand their legal rights in a surrogacy arrangement, as well as the risks involved for the child, for them, and for the intended parents.
Contracts for surrogacy, whether simple or complex, should be created with great care and consideration. Closely examine the rights and responsibilities of all parties involved. Address any risks as well as conditions that could lead to dispute down the line. At its simplest , a surrogacy agreement should cover three key issues:
In a gestational surrogacy, where the surrogate does not use her egg to create the child, these issues can be more complex, since the gestational surrogate will have no genetic ties to the child. Be sure to discuss this with your attorney.
Working with an attorney who specializes in gestational surrogacy can be a huge asset to the process, and at all times intended parents and gestational carriers should ensure that their agreements comply with all applicable Utah surrogacy laws and with other relevant state laws governing adoption and artificial insemination.