Utah Uniform Parentage Act

Gestational Agreements in Utah

Part 8 of the Utah Uniform Parentage Act governs the permissible contents and enforceability of gestational agreements in the State of Utah. Before entering into any gestational agreement, either as the gestational mother or as the intended parents, obtaining competent legal advice is vital to ensuring that you understand the risks and responsibilities that are being taken on by each party involved in the agreement.

This page provides only general information regarding gestational agreements, and should in no way be treated as legal advice. Consultation with an attorney is necessary in order to determine how Utah law on gestational agreements may apply to your specific circumstances. You should not consider entering into a gestational agreement, either as a gestational mother or as the intended parents, unless you have first consulted with an attorney and have fully considered the matter.

Key Points to Remember

• In order to be enforceable, a gestational agreement must first be validated by the court.
• Both intended parents, the gestational mother, and the gestational mother's spouse (if married) must be parties to the gestational agreement and to the petition to the court to validate the gestational agreement.
• The intended parents must be married to each other.
• All parties to the gestational agreement must be at least 21 years of age.
• At least one of the intended parents must be a donor (egg or sperm) in the assisted reproduction procedure.
• Neither an egg from the gestational mother nor sperm from the gestational mother's spouse may be used in the assisted reproductive procedure.
• A gestational agreement cannot apply to any child conceived through sexual intercourse.
• By statute, a gestational agreement cannot limit the gestational mother's rights to make decisions to safeguard her health or the health of the fetus or embryo.
• The gestational mother (and her spouse, if married) both relinquish all parental rights to any child born under a valid gestational agreement.
• Following the birth of a child pursuant to a validated gestational agreement, the intended parents are required to file notice of the birth with the court; the court may then issue orders confirming that the intended parents are the legal parents of the child and requiring  the Office of Vital Records to issue a birth certificate naming the intended parents as parents of the child.

CRITICAL NOTE RE. COURT VALIDATION: While Section 78B-15-802 uses the permissive language "may" in reference to the filing of a petition with the courts to validate a gestational aggreement, Section 78B-15-809 declares that any gestational agreement that has not been previously validated by the court is not enforceable. Consequences of using a gestational agreement that has NOT been validated by the court include the possibility that the intended parents may be held liable for paying support for the resulting child, and also payment of court filing fees, reasonable attorney fees, fees for genetic testing, costs of necessary travel, and other reasonable costs and expenses. Further, parentage of a child born under a nonvalidated gestational agreement will not be established pursuant to the terms of any gestational agreement. Instead, parentage will be determined under the ordinary rules for determining parentage pursuant to Part 2 of the Utah Uniform Parentage Act, Utah Code Title 78B, Chapter 15. IT IS VITAL THAT ANYONE CONSIDERING ENTERING INTO A GESTATIONAL AGREEMENT CONSULT WITH AN ATTORNEY AND HAVE THE AGREEMENT VALIDATED BY A COURT PRIOR TO BEGINNING ANY ASSISTED REPRODUCTION PROCEDURE.

Statutory Text of Utah Code on Gestational Agreements

78B-15-801 Gestational agreement authorized.

(1) A prospective gestational mother, her husband if she is married, a donor or the donors, and the intended parents may enter into a written agreement providing that:

 (a) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;
 (b) the prospective gestational mother, her husband if she is married, and the donors relinquish
all rights and duties as the parents of a child conceived through assisted reproduction; and
 (c) the intended parents become the parents of the child.

(2) The intended gestational mother may not currently be receiving Medicaid or any other state
assistance.

(3) The intended parents shall be married, and both spouses must be parties to the gestational agreement.

(4) A gestational agreement is enforceable only if validated as provided in Section 78B-15-803.

(5) A gestational agreement does not apply to the birth of a child conceived by means of sexual intercourse or if neither intended parent is a donor.

(6) The parties to a gestational agreement shall be 21 years of age or older.

(7) The gestational mother's eggs may not be used in the assisted reproduction procedure.

(8) If the gestational mother is married, her husband's sperm may not be used in the assisted reproduction procedure.

78B-15-802 Requirements of petition.

(1) The intended parents and the prospective gestational mother may file a petition in the district tribunal to validate a gestational agreement.

(2) A petition to validate a gestational agreement may not be maintained unless either the mother or intended parents have been residents of this state for at least 90 days.

(3) The prospective gestational mother's husband, if she is married, must join in the petition.

(4) A copy of the gestational agreement must be attached to the petition.

78B-15-803 Hearing to validate gestational agreement.

(1) If the requirements of Subsection (2) are satisfied, a tribunal may issue an order validating the gestational agreement and declaring that the intended parents will be the parents of a child born during the term of the agreement.

(2) The tribunal may issue an order under Subsection (1) only on finding that:

 (a) the residence requirements of Section 78B-15-802 have been satisfied and the parties have submitted to jurisdiction of the tribunal under the jurisdictional standards of this part;

 (b) 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;

 (c) unless waived by the tribunal, a home study of the intended parents has been conducted in accordance with Sections 78B-6-128 through 78B-6-131, and the intended parents meet the standards of fitness applicable to adoptive parents;

 (d) all parties have participated in counseling with a licensed mental health professional as evidenced by a certificate signed by the licensed mental health professional which affirms that all parties have discussed options and consequences of the agreement and presented to the tribunal;

 (e) all parties have voluntarily entered into the agreement and understand its terms;

 (f) the prospective gestational mother has had at least one pregnancy and delivery and her
bearing another child will not pose an unreasonable health risk to the unborn child or to the physical or mental health of the prospective gestational mother;

 (g) adequate provision has been made for all reasonable health-care expense associated with the gestational agreement until the birth of the child, including responsibility for those expenses if the agreement is terminated;

 (h) the consideration, if any, paid to the prospective gestational mother is reasonable;

 (i) all the parties to the agreement are 21 years of age or older;

 (j) the gestational mother's eggs are not being used in the assisted reproduction procedure; and

 (k) if the gestational mother is married, her husband's sperm is not being used in the assisted reproduction procedure.

(3) Whether to validate a gestational agreement is within the discretion of the tribunal, subject only to review for abuse of discretion.

78B-15-804 Inspection of records.

The proceedings, records, and identities of the individuals to a gestational agreement under this part are subject to inspection under the confidentiality standards applicable to adoptions as provided under other laws of this state.

78B-15-805 Exclusive, continuing jurisdiction.

Subject to the jurisdictional standards of Section 78B-13-201, the tribunal conducting a proceeding under this part has exclusive, continuing jurisdiction of all matters arising out of the gestational agreement until a child born to the gestational mother during the period governed by the agreement attains the age of 180 days.

78B-15-806 Termination of gestational agreement.

(1) After issuance of an order under this part, but before the prospective gestational mother becomes pregnant by means of assisted reproduction, the prospective gestational mother, her husband, or either of the intended parents may terminate the gestational agreement only by giving written notice of termination to all other parties.

(2) The tribunal for good cause shown also may terminate the gestational agreement.

(3) An individual who terminates an agreement shall file notice of the termination with the tribunal. On receipt of the notice, the tribunal shall vacate the order issued under this part. An individual who does not notify the tribunal of the termination of the agreement is subject to appropriate sanctions.

(4) Neither a prospective gestational mother nor her husband, if any, is liable to the intended parents for terminating an agreement pursuant to this section.

78B-15-807 Parentage under validated gestational agreement.

(1) Upon birth of a child to a gestational mother, the intended parents shall file notice with the tribunal that a child has been born to the gestational mother within 300 days after assisted reproduction. Thereupon, the tribunal shall issue an order:

 (a) confirming that the intended parents are the parents of the child;

 (b) if necessary, ordering that the child be surrendered to the intended parents; and

 (c) directing the Office of Vital Records to issue a birth certificate naming the intended parents as parents of the child.

(2) If the parentage of a child born to the gestational mother is in dispute as not the result of an assisted reproduction, the tribunal shall order genetic testing to determine the parentage of the child.

78B-15-808 Gestational agreement -- Miscellaneous provisions.

(1) A gestational agreement may provide for payment of consideration.

(2) A gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or that of the embryo or fetus.

(3) After the issuance of an order under this part, subsequent marriage of the gestational mother does not affect the validity of a gestational agreement, and her husband's consent to the agreement is not required, nor is her husband a presumed father of the resulting child.

78B-15-809 Effect of nonvalidated gestational agreement.

(1) A gestational agreement, whether in a record or not, which is not validated by a tribunal is not enforceable.

(2) If a birth results under a gestational agreement that is not judicially validated as provided in this part, the parent-child relationship is determined as provided in Part 2, Parent and Child Relationship.

(3) The individuals who are parties to a nonvalidated gestational agreement as intended parents may be held liable for support of the resulting child, even if the agreement is otherwise unenforceable. The liability under this Subsection (3) includes assessing all expenses and fees as provided in Section 78B-15-622.

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