Utah Uniform Parentage Act
Gestational Agreements in Utah
Part 8 of the Utah Uniform Parentage Act governs the permissible
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
CRITICAL NOTE RE. COURT
VALIDATION: While Section 78B-15-802 uses the permissive language "may"
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
- In order to be enforceable, a gestational agreement must first be validated by the court.
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.
Statutory Text of Utah Code on Gestational Agreements
(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
(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
(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
(7) The gestational mother's eggs may not be used in the assisted
(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
(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
(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
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
(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
(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
(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
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
gestational agreement only by giving written notice of termination to
all other parties.
(2) The tribunal for good cause shown also may terminate the
(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
(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
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.
Contact a Utah Attorney