Utah House votes to remove barriers for unmarried couples seeking surrogacy

House Minority Leader Brian King, D-Salt Lake City, wears a mask while working in the House chamber on the fourth day of the Utah general legislative session at the Capitol in Salt Lake City on Jan. 21.

House Minority Leader Brian King, D-Salt Lake City, wears a mask while working in the House chamber on the fourth day of the Utah general legislative session at the Capitol in Salt Lake City on Jan. 21. (Kristin Murphy, Deseret News)

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SALT LAKE CITY — Cohabitation outside of marriage is increasingly common and lawmakers should remove barriers for unmarried couples who want children, Rep. Matthew Gwynn, R-Farr West, told the House of Representatives on Tuesday.

"That's a fact that's happening, and we don't attempt to even control what goes on in their bedrooms," he said, as the House debated his bill that would allow unmarried couples to enter into gestational agreements prior to having children via a surrogate.

The House passed HB51 by a vote of 42-32 on Tuesday. It now goes to the Senate for consideration.

The bill removes language in the current code that requires that "intended parents shall be married," and makes a few other minor changes. Gwynn said the bill was brought to him by a constituent who was concerned about the issue.

"Currently, under code, if an unmarried couple wishes to have a family, the statute prohibits them from working with their attorneys and their physicians and using surrogacy as a method of becoming pregnant," he said. "So this bill just seeks to remove that barrier."

Gestational agreements are a type of contract that allow prospective parents and surrogates to outline compensation, parental rights and obligations prior to the pregnancy. Proponents argued that HB51 would create a better environment for children, because it would allow parents to have legal obligations — which is the case for all natural births, intended or not.

Although House Democrats supported the bill unanimously, Republicans were split on the issue. Rep. Merrill Nelson, R-Grantsville, argued that there is not a fundamental right for unmarried couples to have children and said the state has a policy "preference" that children be "born into and reared by a married couple."

In October, the American Family Survey conducted by the Deseret News and BYU's Center for the Study of Elections and Democracy found that adults are less likely to feel that marriage is necessary for strong families, compared with similar polling done in 2015.

"Among younger generations, we're definitely seeing some important social changes," demographer Lyman Stone told the Deseret News last year. "We're seeing less attachment to marriage, and to some extent, smaller family desires."

"I realize that our society is moving away from marriage and the institution of marriage has been weakened by court decisions. But that's nothing that we should submit to or surrender to," Nelson said. "Our position as a matter of public policy should be to support marriage and reinforce the importance of marriage, especially with regard to this statutory privilege that we grant."

He said children born to a married couple are less likely to experience poverty and commit crime, urging the House not to "abandon" the marriage requirement.

Rep. Brady Brammer, R-Pleasant Grove, said Nelson's concerns were valid. "We do have an interest in encouraging marriage," he said, but he ultimately spoke in support of the bill. Currently, unmarried couples have to petition the judge for parental rights after the child is born, he said, which can sometimes result in disputes or confusion about who is legally responsible for the child.

"Someone may have been fighting not to be responsible for them, which is incredibly damaging. ... When people choose to engage a surrogate to have children, we want to make sure that contractually speaking, that child has some certainty as to who bears the obligation and who doesn't bear the obligation," Brammer said.

Gwynn acknowledged the concerns about poverty, but said the process of surrogacy can cost up to $50,000 and take about 17 months to complete. So he said the decisions are being made "competently" and generally by couples with the means to provide a stable environment.

House Minority Leader Brian King, D-Salt Lake City, said he isn't aware of any constitutional reasons that would prohibit gestational agreements between unmarried couples.

"I appreciate and support this bill, because I just don't see that there is a sufficient and strong interest in the Legislature dictating for this kind of a personal, intimate decision ... by saying we're not going to allow individuals who are not married to enter into these kinds of gestational agreements," he said. "I don't think that a one-size-fits-all, blanket, absolutist approach is the right way to go."

Prior to winning approval from the House, HB51 was recommended by the House Judiciary Committee in a 9-1 vote on Friday.

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