In re N.T.B

Decision Date01 August 2019
Docket NumberNo. 20160796,20160796
Citation449 P.3d 69
Parties IN RE GESTATIONAL AGREEMENT N.T.B, J.G.M., D.B., and G.M., Petitioners and Appellants
CourtUtah Supreme Court

On Direct Appeal

Chief Justice Durrant, opinion of the Court:


¶1 This appeal comes to us unopposed. A married couple, both men, wish to become parents. The couple entered into an agreement with a woman and her husband to have the woman act as a gestational surrogate, carrying a fertilized embryo that contains the genetic material of one of the couple. In Utah, by statute, this type of "gestational agreement" "is not enforceable" unless it is "validated by a tribunal."1 A court "may issue an order validating the gestational agreement" "only on finding that" certain conditions are met, one such condition being that "medical evidence" must be presented "show[ing] that the intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child."2

¶2 The intended parents, prospective gestational mother, and her husband (collectively, Petitioners) filed a joint petition, pursuant to the statute, requesting that the district court validate their gestational agreement. The court denied the petition, reasoning that the statute’s use of the words "mother and her plainly refer to a woman," and concluding that because "neither of the legally married intended parents are women the Court must deny their petition." Petitioners appealed, and the court of appeals certified the case to us.

¶3 Petitioners argue, first, that the statute, as interpreted by the district court, violates the Uniform Operation of Laws provision of the Utah Constitution, as well as the Due Process and Equal Protection Clauses of the United States Constitution. They also make a statutory interpretation argument, asserting that the word "mother" should be interpreted in a gender-neutral way to mean "parent." The State of Utah has submitted an amicus brief agreeing with Petitioners’ second argument and urging us to interpret the statute in a gender-neutral fashion so as to avoid the constitutional questions. The State relies on a statutory rule of construction instructing courts to interpret a "word used in one gender [to] include[ ] the other gender" when doing so would not be "inconsistent with the manifest intent of the Legislature," or "repugnant to the context of the statute."3 According to the State, this rule of construction requires us to read the word "mother" as "father" or "parent."

¶4 But Petitioners’ and the State’s proposed statutory interpretation is "inconsistent with the manifest intent of the Legislature" and "repugnant to the context of the statute."4 Their suggested reading would effectively nullify the requirement that an intended mother show medical evidence that she is unable to bear a child altogether or without serious risk of harm to her or the child—an action that would undercut the legislature’s intention. Additionally, their proposal contradicts provisions within the Utah Uniform Parentage Act (Act)5the act encompassing the gestational agreement statute—that explicitly separate "mother" and "father" into distinct gender-specific terms. Because Petitioners’ and the State’s proposed interpretation is inconsistent with the manifest intent of the legislature and repugnant to the context of the statute, we are statutorily precluded from applying the suggested rule of construction. We therefore hold that the district court’s interpretation is consistent with the manifest intent of the legislature and thus address the constitutional challenge to the statute.

¶5 Under the district court’s interpretation, the intended mother requirement precludes married same-sex male couples from obtaining a valid gestational agreement—a benefit statutorily linked to marriage. Petitioners argue that recent United States Supreme Court precedent precludes states from denying similarly situated same-sex couples marital benefits afforded to couples of the opposite sex,6 and the State does not oppose this argument. Accordingly, we hold section 78B-15-803(2)(b) unconstitutional. We further hold that the unconstitutional subsection should be severed, leaving the remainder of the statute intact, because doing so would not disrupt the overall operation of the Act or undermine the legislature’s intent in enacting the statute. We therefore reverse and remand for further proceedings consistent with this opinion.


¶6 Petitioners N.T.B. and J.G.M. (Intended Parents) are a married same-sex male couple. Petitioners D.B. and G.M. are an opposite-sex married couple who entered into a written gestational surrogacy agreement with the Intended Parents. The four individuals filed a joint petition requesting that the district court validate their agreement, in accordance with the statutory scheme contained in Utah Code sections 78B-15-801 through 809, the provisions of the Utah Uniform Parentage Act dealing with gestational agreements. After reviewing Petitioners’ joint memorandum in support of the petition and holding a telephonic hearing on the matter, the district court issued an order denying the petition.

¶7 In its order, the district court expressed "concern[ ] about the language of" Utah Code section 78B-15-803(2)(b), which requires, as a prerequisite to court approval, the court to find that "medical evidence shows that the intended mother is unable to bear a child or is unable to do so without unreasonable risk to her physical or mental health or to the unborn child." The district court noted that Petitioners had "filed a well written and researched" memorandum supporting their petition, and had, at the hearing, "presented additional well-reasoned arguments as to why the Court should interpret the above statutory language in a gender neutral fashion." The district court went so far as to note that "Petitioners’ reasoning is sound," but nevertheless concluded that it could not "say that the legislature intended [ Utah Code section 78B-15-803(2)(b) ] to be gender neutral." Instead, the court concluded that "the word[s] mother and her plainly refer to a woman," and, accordingly, found itself "bound to apply the statute as written." The court concluded that, because "neither of the legally married intended parents are women," it "must deny their petition."

¶8 The Petitioners appealed, again unopposed. Before the court of appeals set a briefing schedule, Petitioners moved for summary disposition under rule 10(a)(2)(B) of the Utah Rules of Appellate Procedure, seeking reversal on the basis of "manifest error." The court of appeals denied the motion, concluding that "the outcome [Petitioners] request requires statutory interpretation and is a matter of first impression," making summary disposition inappropriate. The court of appeals then certified the case to this court. As we further discuss below, we have jurisdiction under Utah Code section 78A-3-102(3)(b).

Standard of Review

¶9 The Petitioners raise two issues on appeal: first, whether the district court misinterpreted the applicable statute by failing to "give [it] a gender neutral reading," and second, whether, under the district court’s reading, the statute is unconstitutional under either the state or federal constitution. The proper interpretation of a statute and its constitutionality are questions of law that we review for correctness.7


¶10 Petitioners first argue that the district court misinterpreted the Utah Code by failing to read the statute in a gender-neutral way in order to avoid constitutional concerns. The State agrees with Petitioners and urges us to interpret "mother" to mean "father" or "parent," relying on our rules of statutory construction for support. Employing our rules of statutory construction and the canon of constitutional avoidance to construe the statute in a gender-neutral manner is inconsistent, however, with the manifest intent of the legislature and is repugnant to the context of the statute. We therefore interpret "mother" in section 78B-15-803(2)(b) of the Utah Code to mean "female parent," thereby compelling a constitutional analysis of the statute. Because a plain reading of section 78B-15-803(2)(b) works to deny certain same-sex married couples a marital benefit freely afforded to opposite-sex married couples, we hold the statute violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment, under the analysis set forth in Obergefell .8 We likewise hold that section 78B-15-803(2)(b) is severable from the Act.

I. We Have Jurisdiction to Hear This Case

¶11 Before reviewing Petitioners’ arguments, we must first address the question of jurisdiction. As noted above, this case comes before us in a unique posture. By statute, all parties must jointly file a petition with the district court in order to validate a gestational agreement. Utah Code expressly states that the court may issue an order validating a gestational agreement only on a finding that, among other things, "all parties have voluntarily entered into the agreement and understand its terms."9 The entire proceeding is therefore predicated on the complete agreement of the relevant parties; no adverse party may exist. Indeed, no respondent participated in the proceedings before the district court in this case and none appears before us now on appeal.10 So by statutory scheme, there is no controversy between adverse parties before us.

¶12 Ordinarily, the lack of adversariness present here would raise constitutional questions of justiciability. The Utah Constitution vests the courts with the "judicial power of the state,"11 and therefore "we are constitutionally limited to wield only ‘judicial power.’ "12 This "judicial power ... is generally understood to be the power to hear and determine controversies between adverse parties ."13 Thus, generally, in "the absence of any justiciable controversy between adverse parties, the courts are without jurisdiction."14...

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4 books & journal articles
  • Review of the Year 2018-2019 in Family Law: Jurisdiction and Choice of Law Issues Abound
    • United States
    • ABA General Library Family Law Quarterly No. 53-4, January 2020
    • January 1, 2020
    ...594 S.W.3d 466 (Tex. App. 2019). 243. State ex rel . CYF v. Manson, 446 P.3d 1074 (Kan. Ct. App. 2019). 244. In re Gestational Agreement, 449 P.3d 69 (Utah 2019). Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission......
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    • February 1, 2023
    ...(holding that Arizona's marital presumption applies to the wives of birth mothers). (325.) Id. at 498 (summarizing this argument). (326.) 449 P.3d 69 (Utah (327.) Id. at 82. (328.) Kiviti v. Pompeo, 467 R Supp. 3d 293, 307-08 (D. Md. 2020); Mize v. Pompeo, 482 F. Supp. 3d 1317, 1337-38 (N.D......
  • Contractual Chaos: State-by-State Disparities and the Search for Equitable Enforcement of Surrogacy Agreements.
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    • Suffolk University Law Review Vol. 56 No. 1, January 2023
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    ...GC agreement at issue only because the surrogate mother had no genetic ties to the baby. See id. ; see also In re Gestational Agreement, 449 P.3d 69, 72 (Utah 2019) (holding GC agreements enforceable when validated by tribunal). In enforcing the GC agreement between a same-sex couple, the U......
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    • Georgetown Journal of Legal Ethics No. 35-2, April 2022
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    ...of the term when dealing with statutes repealed by implication. We likewise apply the same meaning here. In re Gestational Agreement, 449 P.3d 69, 73 n.4 (Utah 2019) (citations omitted). 328. Susan Harding, Representing Fundamentalism: The Problem of the Repugnant Cultural Other , 58 SOC. R......

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