Senator aims to repeal legal protections for surrogate births

Photo by Jane-Khomi, iStock / Getty Images Plus, St. George News

ST. GEORGE — With the issue now before the Utah Supreme Court of whether or not gay men should have the right to the same legal protections in surrogate birth arrangements as others have under Utah law, one senator wants to end those protections, at least for now, for all couples in order to keep a promise he made 13 years ago.

Sen. Lyle Hillyard, R-Logan, is seeking to pass a bill that would end legal protections for surrogate births | Profile photo via, St. George News

Sen. Lyle Hillyard, R-Logan, is sponsoring a bill, designated SB 126, that would repeal Utah law on gestational agreements, law that came from a bill he sponsored in 2005.

As it stands, Utah law allows for gestational agreements, often referred to as surrogacy agreements, to be validated by a Utah court if the agreements meet certain criteria. The court’s validation essentially ensures legal protection to the parties for enforcement of their agreements which could, among other things, determine parental rights.

While Hillyard’s 2018 bill would not make surrogate births in Utah illegal, it would end the legal protections that provide for court validation and thus enforcement of surrogacy agreements.

Regardless of laws concerning surrogacy agreements, parental rights may still be decided by a court in the event multiple people vie for parental rights of a child. 

Hillyard’s promise

When Hillyard tried to pass his bill to legalize surrogate births in 2005, he said, he had trouble getting enough votes from the House. In order to get more than 10 representatives in the House to support his bill in 2005, he promised them that he’d later seek to repeal the law if ever it expanded to include more than were intended at the time. 

“I would have never gotten that bill through the Legislature if I hadn’t made that commitment,” Hillyard told St. George News.

Flash forward to 2018 and the challenge asking the Supreme Court to expand the law’s legal protections to gay men. Hillyard is back before the Legislature with his bill now seeking to revise the law, consistent with his 2005 promises.

Hillyard said he hopes someday there will be a better bill that will once again give legal protections to surrogate mothers and intended parents.

“If my bill passes, surrogate births can still happen if people still want to do it,” Hillyard said, but explained that the parties would lack the legal authority to enforce the surrogacy agreement.

Challenge to current law

Hillyard’s bill comes on the heels of a case currently before the Utah Supreme Court. The court is considering the right of gay men to such enforceable surrogacy agreements. The facts of the case stem from a Washington County judge denying a Southern Utah gay couple a surrogacy agreement in 2016.

Because the law stemming from Hillyard’s 2005 bill was expressly written for “mothers” seeking a child through surrogacy, it allows lesbian and heterosexual couples to enter into such  arrangements but not gay men. Because the law lacks gender-neutral words, and because men can never be “mothers,” gay men cannot enter into surrogacy agreements under the current law.

So, rather than changing the law as to those agreements, Hillyard is seeking to throw them out altogether.

“I just don’t have the time right now to fine tune it,” Hillyard said. “So if (a gestational agreements revisions law) doesn’t take effect for another year, we’ll have time to do that.”

If his bill is passed, Hillyard said, the law wouldn’t take effect until either July 2018 or July 2019, allowing legislators time to come up with a plan to allow surrogate births again under more narrow circumstances than before.

“I don’t think there’s anyone who thinks all surrogate births are wrong,” Hillyard said. “We just need to make sure the law is written in a way that only allows surrogate births under specific circumstances. We need to stop selling babies, you know.”

Opposition to Hillyard’s bill

Hillyard’s bill was debated Wednesday in the Senate Health and Human Services Committee but did not pass or move to a vote as some members were absent.

During Wednesday’s hearing, dozens of people, including Abby Cox, Lt. Gov. Spencer Cox’s wife, came to voice their opposition to the bill. Hillyard was the only one present voicing support for the repeal revisions.

A Southern Utah woman who is pregnant with the second baby she’s carried via gestational surrogacy told St. George News this bill would be “extremely insulting” to many families across Utah. She spoke on condition of anonymity for the sake of her own privacy and that of families she’s served.

“(This bill) would create something like a black market here,” the Southern Utah surrogate said. “You’re going to get women that wouldn’t have been allowed to be a surrogate mother before … approved. Maybe they’re on welfare, or maybe they have a history of mental illness.”

The current law protects all parties involved in a surrogate birth and should not be repealed, she said. The only thing that should be changed from the current law is the language so that it is gender-neutral, so it doesn’t discriminate against gay men.

“It works really well,” the woman said of Utah law governing such arrangements. “To undo that because (Hillyard) made promises 13 years ago is asinine to me.”

The only reason she decided to be a surrogate mother, the woman said, was to help people have families who otherwise wouldn’t have been able to.

Hillyard said he knows he has an uphill battle to get his proposed revisions passed. He’s fighting against a lot of “lobbying and emotion” against his bill, he said.

“I didn’t think it was that big of a deal,” Hillyard said. “But I’ll tell you, from all the negativities I’ve gotten about it, there’s a lot of people protecting themselves, which makes me nervous.”

The bill remains in committee for further debate and possible recommendation when enough members are present.


Read more: See all St. George News stories related to Utah’s 2018 legislative session

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  • DRT February 10, 2018 at 12:00 pm

    So tell me how any man, straight, gay, or other be discriminated against with the law the way it is now?

  • comments February 10, 2018 at 5:38 pm

    i believe if a woman births a baby that baby is hers until she signs it away, AND THIS SIGNING AWAY DONE AFTER THE BABY IS BORN. I don’t care whose DNA it’s got. If she birthed it it’s her baby until she decides otherwise.

    And two gay homosexual men should not be raising a baby. A baby needs a mother and a father.

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