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Thursday, July 2, 2015

Op-ed: Utah adoption, surrogacy laws need to adapt to same-sex marriage

Friday was a momentous day in the history of our nation. The U.S. Supreme Court ruled that all states must allow same-sex couples to marry.

The legislature of each state will now need to adapt its laws to reflect this new reality.

One of the main questions that will need to be addressed is whether laws regarding reproduction and parenthood should be exactly the same for gay couples, lesbian couples and heterosexual couples.

As a current state legislator, it seems to me that laws for these different types of relationships will naturally be different, due to the inherent biological distinctions between each of these unions.

For example, current Utah law provides that when a child is born to a married woman, the man to whom she is married is legally presumed to be the child's parent.

But when a child is born to a woman in a same-sex marriage, I am uncertain whether the law should impose upon her spouse a similar automatic presumption of parental rights and responsibilities over that child, unless the spouse has affirmatively agreed in advance to become the parent of that child.

Surrogacy laws are another area of difference. Utah law provides that a woman may bear a child as a surrogate for another person only if a court finds that the "intended mother" is unable to reproduce. Two married men who wish to become parents will obviously need the Legislature to enact a different law to govern their choice.

Adoption also presents different questions for same-sex couples. Utah law requires a natural parent of a child to terminate his or her own parental rights before another adult can adopt the child.

With same-sex marriage, however, some couples may wish to preserve the parental relationship with the opposite-sex parent when the unrelated same-sex spouse adopts the child.

None of these, or many other, questions regarding same-sex marriage will be easy to answer, but the Utah Legislature will need to answer them by passing new laws.

Unlike differences of race, differences of gender produce different results regarding parenthood that the law must address, and reasonable people can disagree on the specific policies the Legislature may pass to resolve these questions.

People who disagree with the passage of particular legislative policies will go to court to challenge those policies.

This will likely lead to an era of litigation by all sides, similar to what our country experienced with the abortion case of Roe v. Wade.

In that case, the court had to balance the right to life of unborn children with the right of women to obtain an abortion. The court ended up with a compromise position, which allows prohibition of abortion in some situations but not in others.

In the realm of same-sex parenting, the courts will be balancing the rights of children to be raised by their natural parents with the rights of adults to become parents through artificial means.

The courts will also likely be asked to consider the right of children to have gender diversity among their parents and the extent of a state's authority to protect that right.

I have introduced legislation for the upcoming session to address several issues prompted by the Supreme Court's decision.

I will approach all of these line-drawing questions with an open mind, for I cannot believe that either side has no good points to make.


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