There’s a new case from Utah that raises some issues we’ve talked about here.
To begin with, a word about existing Utah law. The statutory law in Utah facilitates a married couple’s use of assisted reproductive technology. In particular, if a married man/woman couple use sperm from a third-party in order to conceive a child the husband is automatically the legal father of that child, as long as the proper consents have been executed.
One way to think about this is as a special case of the marital presumption. (This has been the subject of much discussion in the past–check out the tags on the left.) That presumption generally states that if a married women gives birth to a child, the child is presumed to be the legal child of the husband. The general presumption works in different ways in different states and at least sometimes it can be rebutted by genetic testing.
But of course, if the husband and wife are using third party sperm, we all know what the genetic tests would show: the child is not genetically related to the husband. So if it could be rebutted in that fashion the presumption would be useless to the husband and wife using third-party sperm. This result runs counter to what the husband and wife want–they’re trying to start a family together, after all. And so you get this special statute that applies in the case of ART and has no provision for rebuttal by genetic testing.
So that’s all the basic shape of existing Utah law. But let me note one more thing about it. The law specifically refers to “husband” and “wife.” It does not say “spouse.”
You can probably guess where this is going. These days two women can get married in Utah. Suppose they sign all the consents and use third party sperm and a child is born. Is the wife of the woman who gives birth a legal parent?
On the one hand, the statute says “husband” and she’s not a husband. But on the other hand, what rationale would justify extending the presumption to him but not her? In both instances we know with certainty that the person is not genetically related to the child. If the state does that it provides better treatment to a man than to a similarly situated women–and that’s going to be a problem. If you treat the sexes differently you have to have some particular justification for doing so.
What’s interesting here, though, is that the court doesn’t even get that far. The court notes that the statutes were enacted when there could only be husband/wife pairings and so it isn’t indicative of any specific intent that the legislature used that language. And then the court found that the state failed to justify the differential treatment, even under the least stringent, most generous analysis–rational basis.
Defendants have not offered a rational basis for the different treatment of male and female spouses of women who give birth through assisted reproduction involving the use of donor sperm. At the hearing on this motion, when asked for a reason explaining the statutes’ differential treatment, Defendants offered a concern over accuracy of vital statistic records for researchers. They could not, however, specify any tangible effect that recognizing a female spouse as a parent would have on the accuracy of those records. Defendants also cited a concern for making parentage clear as another potential reason for the distinction. They could not explain, however, how recognizing a female spouse as a parent and listing her as a parent on a birth certificate undermined the clarity of parentage. The court finds that neither is sufficient as a rational basis to satisfy the challenged distinctions under an Equal Protection analysis.
The key here is that the court didn’t say that the interests the state advanced weren’t of sufficient importance. Instead it said the statute doesn’t serve those interests in any way. That’s a pretty strong assertion, but it actually seems right. Unless you want to go down the road of saying a child needs a mother and a father (which I guess Utah does not want to go down), then the answer here seems pretty clear.