In Utah: As to the Husband, So to the Wife

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.

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7 responses to “In Utah: As to the Husband, So to the Wife

  1. “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.”
    I will call you on the exact wording of this statement and request that you please site chapter and verse some state code that phrases it that way. I have poured over paternity laws in various states just to get my facts straight and in each state’s parentage laws that I’ve tediously combed through its referred to as “Marital presumption of paternity” And paternity is described described in those same laws as biological fatherhood. They don’t say that they presume the husband is the legal father they presume he is the biological father unless proven otherwise. (within a time limit that is just absurd to me because paternity does not expire) but nonetheless the presumption is of paternity/biological fatherhood which then leads to the responsibilities of legal fatherhood.

    • First part of case quotes Utah statutes. They are not talking about genetics as, in theses cases, everyone knows there is no genetic connection.

      • agree and disagree with your formulation. i agree that the sperm donor law is an extension of the marital presumption. I disagree with your denial that in its root it is based on biology. Hence the ability to rebut, which makes no sense if it not based on biology.
        What the law accomplishes is to protect the state in case the social dad decides to use his right to rebut, which would leave the kid’s upkeep possibly to the state. But this would be hugely unfair, so the law is dependent on his initial consent.
        What is going on here, is that perhaps the law is actually in flux and moving towards your formulation of it, thanks in no small part to the passage of same sex marriage as this post makes clear. Once marriage is degendered, clearly the biological component and gendering of related laws- is clearly undermined.
        but I think its a mistake to flatly claim that the law is not about biology.

        Of course, if the marital presumption is to stand, despite the degendering of marriage, it may well be degendered as well, which as you say would have no biological underpinnings. It would also mean that the wife of a married man who sires a child should be considered a parent as well.

        I recall a case on this blog which discussed something similar?

        • ok the case i had in mind wasn’t quite about that , but close enough:
          https://julieshapiro.wordpress.com/2011/10/13/about-that-im-married-too-argument/

        • A rebuttable version of the presumption wouldn’t work well for heterosexual couples using ART. Not only (as you suggest) could the husband walk away from the child, but the wife could totally freeze him out if she chose to do so. I think both of these possibilities were cause for concern. The solution was to create a version of the presumption that couldn’t be rebutted. I think that means that–at least in this circumstance–it isn’t about genetics at all.

          But that’s only speaking of this special and limited version of the presumption, applicable to couples using ART. The extent to which the broader presumption (which is what I think of when you speak of the root of the presumption) is related to genetics is a different question. And here the picture is far more complicated, partly because how the presumption operates varies a good deal state to state–particularly the ways in which it can be rebutted.

          I’ll certainly agree that the law is in flux. And thinking about whether and how the presumption might be flipped–the very last topic you’ve got–is just fascinating to me.

      • There is a difference to you between paternity and parenthood and yet marital presumption is a presumption of paternity not legal parenthood.

        • I would distinguish between “paternity” and “parenthood” though I think I’ve tried not to use the word “paternity.” Both words can be ambiguous and so I try to be careful. “Parenthood” can be modified by a lot of different adjectives. I don’t usually see “paternity” with modifiers but I wonder if some people think legal paternity (being a legal father) and some people think of genetic paternity (being a genetic father.) If people use the word differently that’s likely to lead to confusion.

          All that said, I’m going to assume you mean paternity to refer to genetic relationship, at least in this comment. And if that is so, then I do not agree that the marital presumption is a presumption of genetic parenthood. It may be based on some assumptions on what is going on at the genetic level, but it is a generally a presumption about legal parenthood.

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