On February 5, 2024, the Danish government announced new surrogacy support regulations that are scheduled to come into force on January 1, 2025. The Regulation also refers to parent-child relationships in families formed through surrogacy, including commercial (compensated) surrogacy outside Denmark. A family formed through altruistic (unpaid) surrogacy in Denmark.
of problem — Children without legal parents
Denmark, like most European countries, has struggled for decades with complicated views on surrogacy and how to respond to families formed through surrogacy abroad. Compensated surrogacy is illegal in Denmark, and altruistic surrogates have traditionally fallen into a legal gray area, where they want a genetic link to the child but are unable to conceive on their own. Most of the parents who have no hope are forced to go abroad. The Danish government estimates that around 100 children are born to Danish parents each year by surrogacy outside Denmark, while around 5 children are born each year in altruistic surrogacy arrangements within Denmark. I am.
That statistic includes the marriage of Danish same-sex couple Lanvin and Kaspar. The pediatrician and communication director always knew they wanted to have a child, but with Danish laws being unhelpful and finding an altruistic surrogate mother difficult, the best option was to have a surrogate abroad Met. The couple’s twins were born in my home state of Colorado, which has quickly become one of the friendliest states for surrogacy arrangements. Here in the United States, both fathers were recognized as parents of both children. However, this was not the case in Denmark itself. Each father was only recognized as the parent of her one of the genetically related twins. So in Denmark they live as her one family, but legally they are still considered her two separate families, and the father of one can legally claim custody of her two. She is the only one of her children. Their families have been living in this legal limbo for years, with the risk that if something were to happen to one parent, one child would no longer be recognized as part of the family. I’ve been worried that this might be the case.
Lanvin and Kasper share their family stories and advocate for improvements to Danish law (including this podcast interview with Kasper). So last week’s announcement was cause for real celebration.
Significant decisions of the European Court of Human Rights
Denmark has a history of denying parental rights to would-be parents of children born overseas through surrogacy. However, on December 6, 2022, the European Court of Human Rights ruled against Denmark in KK and Others v. Denmark. In this case, a married heterosexual couple gave birth to twins with the help of a Ukrainian surrogate mother. Under Ukrainian law, both Danish intended parents were recognized as the child’s parents, and the surrogate mother was not the child’s parent.
However, Danish courts did not think so. The father was recognized as the parent of both children based on his genetic connection to them. However, the intended mother did not give birth to the children and was therefore not legally recognized as their mother. The intended mother tried to adopt the children for more than six years, but the adoption was ultimately rejected by the Danish Supreme Court because the Ukrainian surrogate mother had received compensation. Ta.
The ECHR found that Denmark’s refusal to recognize the parent-child relationship between mother and child was a human rights violation. It found that this was not a violation of the mother’s human rights, but rather a violation of the two children’s right to have a recognized legal relationship with their mother.
To its credit, Denmark has reacted to the ECHR’s final judgment. In an announcement last week by the Danish government, the government made clear that the country’s new rules are intended to go beyond the ECHR’s minimum requirements of not simply violating the human rights of Danish children. (The minimum requirement is that the stepparent be allowed to adopt.) Instead, the Danish government’s new rules go further to protect children and their parents.
Recognition for parents of children born through surrogacy overseas
The new regulations focus on two areas of surrogacy. First, the rules state that children born overseas through surrogacy, like Ramvin and Kaspar, should be recognized as such by both parents from birth, in the best interests of the child. It is recognized that The new rules will allow Danish family courts to quickly decide on parentage in the case of foreign surrogacy agreements, and will also allow the court to issue a judgment before the family returns to Denmark. The rule also requires the court to evaluate the child’s best interests, with the assumption, of course, that timely parental recognition is in the child’s best interests.
Additionally, court decisions are allowed to be retroactive to the child’s birth, allowing parents to receive parental leave benefits, inheritance rights, and any other legal benefits they may have. And in contrast to step-parent adoptions, the new rules allow for parent-child relationships with the mother or non-genetic parent even if the parents are separated or one parent dies before filing for custody. I acknowledge that I acknowledge that.
In an attempt to address the risk of child trafficking, the rule requires that at least one of the intended parents be genetically related to the child. In addition, the surrogate mother must confirm in a notarized document that she wishes to transfer custody of the child to the natural parents after the birth.
Altruistic surrogacy approved in Denmark
The new regulations also explicitly authorize the recognition process for parentage in altruistic surrogacy arrangements within Denmark. This regulation allows Danish family courts to approve and register altruistic surrogacy agreements before a pregnancy is established. Many of these rules are actually similar to many American surrogacy regulations.
- The surrogate mother must be at least 25 years old (most states in the United States that regulate surrogacy have a minimum age requirement, but consistent with American Society of Reproductive Medicine guidelines, that requirement is slightly lower at 21 years old) There is a tendency).
- The surrogate mother must not be placed under guardianship. (Seems obvious!)
- The surrogate mother must have given birth to at least one child of her own. (This is also a common requirement in the US.)
- The surrogate mother must not receive compensation as part of the contract. If there is no close relationship between the surrogate and the intended parents, the arrangement is presumed to be commercial and not compliant. (This is in contrast to U.S. regulations, which explicitly allow for compensation for the surrogate mother’s time and effort and the risks she assumes.)
- The surrogate mother retains the right to make decisions about her own body, including whether to terminate the pregnancy. (This is consistent with many American surrogacy regulations, such as Colorado law, which require that the surrogacy agreement authorize the surrogate to make all health and welfare decisions regarding herself and her pregnancy. They match.)
- The agent can withdraw from the contract. (This is consistent with American regulations for many states, unless the surrogate mother is pregnant.)
- The surrogate mother resides in Denmark at the time of conclusion of the contract and establishment of the pregnancy. However, the actual pregnancy does not have to take place in Denmark. (Most American laws have residency requirements related to that state’s jurisdiction.)
If the surrogacy arrangement meets the requirements, the intended parents will be registered as the child’s parents at the time of birth.
Kasper explained: “This new political agreement is the result of many years of advocating for better rights for surrogate families in Denmark, and it is clearly something we are overjoyed about.” This new approach offers Danish families formed through surrogacy a whole new level of peace and security, both abroad and at home, as the original parents no longer have to fight for basic legal rights and registration. I will. ” However, Kaspar also added that “there is still much that can be done to educate the Danish political system. We need institutions and professionals, both legal and medical, to understand how , we need to be able to have a fact-based national conversation.”
New rules are worth celebrating. Kudos to Denmark for recognizing the precarious situation in which surrogacy families find themselves and taking proactive steps to amend the country’s outdated laws.
Ellen Trackman is Trackman Law Center LLCa Denver-based law firm specializing in assisted reproductive technology law and co-host of the podcast. I want to put my baby inside you. She can be reached at the following address: baby@abovethelaw.com.