sou · H4B311 · 2016-02-24 00:00:00 — There are further disadvantages here: for example, a surrogate mother may also have other difficulties in exercising her right to self-determination, for instance regarding her right to abortion, and there are also difficulties in framing acceptable regulations about the responsibility for costs in a surrogate arrangement. Our view is thus that the disadvantages outweigh the advantages and that surrogacy should not be permitted in the Swedish health system. No legislative amendments are needed to bring this about. Our remit in this part of the inquiry is to examine and analyse the applicable regulatory framework and how it is applied in cases where a child has been conceived through a surrogacy arrangement abroad. We also have to look particularly at the international private law and judicial procedure aspects and to consider whether special rules should be introduced for children conceived in this way. If we conclude that special rules should be introduced, we are also to look at possible solutions, for example expanding the possi- bilities of establishing parenthood through an acknowledgment or a judgment, making a transfer of parenthood possible, amending the regulations on the recognition of foreign decisions on paternity or making it possible to recognise foreign decisions on maternity. Our deliberations in these matters are to build on our conclusion about whether to permit surrogacy in the Swedish health system and in what circumstances it can then take place. Our terms of reference state that any regulations shall be intended to remove the current uncertainty about the legal position while countering circumvention of a ban or restrictions on surrogacy in . If we conclude that there is no need to introduce special rules in this area, we are instead to consider whether special transitional rules should be introduced instead. The latter rules are to cover cases where a child is already in , or is on its way here, and where it is not possible to establish that any person other than the surrogate mother is the legal parent or custodian of the child or there are difficulties associated with doing so. Irrespective of what conclusion we arrive at in the above matters, we are also to consider what information measures need to be carried out to make public authorities and the general public aware of the meaning of Swedish legislation and to propose which body or bodies should be responsible for these information measures. As of it will be possible for single women to under- go insemination or fertilisation outside the body in the Swedish health system. To simplify reading we will also assume in this section that the rules about single women have already entered into force. An analysis of the Swedish regulatory framework and its application Almost all surrogacy arrangements abroad to date that have in- cluded persons who are habitually resident in have been carried out with the sperm of a prospective father. We will there- fore deal first with the rules that apply to those cases and then deal with the rules that apply to other cases. However, before dealing with these rules, we will say something about the position when the application of international private law rules leads to the con- clusion that Swedish law is to be applied to the question of parent- hood. In these cases an application of Swedish law means that the surrogate mother shall be regarded as the legal mother of the child and that her husband shall regarded as the legal father of the child. If a prospective father’s sperm have been used in the surrogate arrangement, the man can, under certain conditions, be established as the legal father of the child. However, this requires that the paternity of the surrogate mother’s husband is annulled first or that there was no man, at the time of the birth of the child, who would automatically be regarded as the legal father of the child. In contrast, other prospective parents cannot be established as the mother, father or parent of the child after a surrogacy arrangement abroad. Parenthood for these prospective parents thus requires adoption. When a surrogacy arrangement abroad has been carried out using a prospective father's sperm, the question often arises of whether there is a foreign of paternity for him that is valid under the International Paternity Act (1985:367) and that can there- fore be recognised in . In assessing that question it may be necessary to consider what is to be regarded as a valid acknowledge- ment under that Act. It may also be necessary to consider whether there is what is called a ground for refusal in the particular case. For instance, a foreign of paternity shall not be recognised if it is manifestly contrary to the foundations of the Swedish legal order to do so (what is called “public policy”). The question of whether a foreign of paternity is valid in normally be examined by the authority where the question is raised, for example the . If the foreign has taken place through a judgment, the question can also be examined by a general court. The of Appeal examined relatively recently whether it can be deemed to be contrary to public policy to recognise a US judgment on the of paternity that established the genetic father and the social father as the child’s legal fathers. In these matters the Court of Appeal found that this was not the case and that the US was therefore valid in . None of the orders was appealed to the Supreme Court, which has therefore not examined the question. If a foreign of paternity is valid under the Act and the established father is a Swedish citizen, the child is regarded as having acquired Swedish citizenship at birth. The child can then obtain a Swedish passport and to with its legal father and any partner he may have. After arriving in the father can apply for sole custody of the child and the father’s partner can apply for what is called a “stepchild adoption”. When there is not a valid foreign of paternity, the question arises of whether paternity can be established by a Swedish municipal social welfare committee or in a Swedish court. If the child is still in its country of birth and the of pater- nity in is thus to take place at a distance, it is generally not possible for paternity to be established by a Swedish social welfare committee. It may, however, be possible, under certain conditions, to establish paternity in a Swedish court. If, instead, the establish- ment is to take place after the child’s arrival in , the question arises of how the child is to be able to enter . Since the child is not a Swedish citizen, it must have a passport or other essential documents. It must also have a permanent permit in . Neither the nor the migra- tion courts have examined questions concerning a permit after a surrogacy arrangement abroad. The legal situation in this area must therefore be viewed as unclear. We now move on to describe what the position is when the sperm of another man, for example a donor’s sperm, have been used in a surrogacy arrangement instead. What is common to all these cases is that it is not possible under the Children and Parents Code to establish that the prospective parents are the legal parents of the child. How to apply the rules on the recognition of foreign of paternity in the Inter- national Paternity Act can therefore also be regarded as unclear. Would the of Appeal have come to the same conclusion in its rulings mentioned above if none of the men had had a genetic link to the child? Which assessments would the Court have made if the foreign judgment had instead been about establishing maternity or parenthood for two women? In the absence of guiding decisions it is not possible to give a clear answer to these questions. If it is not possible to obtain a valid of the parent- hood in , an adoption is required to make the prospective parents the legal parents of the child. The scope for recognising a foreign adoption decision after a surrogacy arrangement abroad seems to be limited. The same applies to a Swedish court's possi- bilities of examining an adoption application before the child comes to . But, if the child has come here, there is no impediment to a Swedish court examining the question of adoption. case the court shall apply Swedish law. As regards the possibilities for a child to to and take up here, we refer to what was stated above. It should be added that, as far as is known, there are no guiding decisions in matters concerning adop- tion after a surrogate arrangement abroad. So the legal situation in this area must also be regarded as unclear. International surrogacy arrangements can result in problems of various kinds and magnitudes. The more serious problems include “limping legal parentage” and statelessness for the child. In many instances the problems are a result of countries having different views and rules about surrogacy arrangements and of prospective parents and surrogacy-friendly countries not respecting these differences. It must, at the same time, be added that up to now has been spared more serious problems in these contexts. The problems that have come up here have chiefly related to the processing of matters by public authorities after the arrival of the child in . There are, at the same time, advocates who put forward the view that, in the light of the principle of the best interests of the child, we nevertheless need to implement extensive changes in this area. They argue, for instance, that we in – irrespective of whether or not we permit surrogacy – must focus on the newborn child and take every conceivable measure to enable the prospective parents to bring the child here. However, such a system is hard to reconcile with the conclusion we have already drawn to the effect, first, that surrogacy should not be permitted in the Swedish health system and, second, that commercial surrogacy arrangements abroad should be countered in various ways. We can be regarded as countering the occurrence of commercial surrogacy arrangements if, at the same time, we always accept the consequences of such arrangements. We have therefore reached the following conclusions. The principle of the best interests of the child cannot be held to demand that we, in , make extensive amendments to legislation in this area or that we take other far-reaching measures to solve all the problems that may arise when individuals from receive children through a surrogacy arrangement abroad. But this principle must be held to demand that we in have good regulations for the children who are here and for the children abroad who are Swedish citizens. In addition, the principle must, of course, be taken into account in various contexts that concern a child, for instance when amending legislation. Our view is thus that there may be a need to introduce special rules to deal with the problems that have arisen in after a surrogacy arrangement abroad. There may also be a need to intro- duce such rules to counter the emergence of other problems. At the same time, we must add the following. Our terms of reference state that our deliberations in this part of the inquiry are to start from the conclusion we draw as to whether to permit surrogacy in , and that the purpose of regulations is to be to counter circumvention of a ban or restrictions on surrogacy in . We have, as stated above, concluded that surrogacy should not be permitted in the Swedish health system and that commercial surrogacy abroad should be countered in various ways. This part of the inquiry is therefore largely concerned with, on the one hand, trying to solve the problems that must be solved and, on the other, taking measures to counter individuals in undergoing surrogacy arrangements – generally commercial in nature – abroad. This means that we are not going to propose introducing rules about the transfer of paternity or parenthood after a surrogacy arrange- ment abroad or rules about the recognition of such transfers.This is because rules of this kind cannot be regarded as being needed to solve problems identified and will, instead, only mean that more individuals can undergo surrogacy arrangements abroad. are we going to propose any amendments to the material rules about maternity, paternity or parenthood under Chapter 1, Section 9 of the Children and Parents Code or to the rules for Swedish citizenship and entry requirements to . It should be added that the latter rules fulfil important functions in society. One of them is to counter trafficking in children and other cross-border crime. The fact that we do not propose any alterations to the material Swedish rules about the parenthood of a child means that in the cases in question there will only be one group of prospective parents in who can be held to be the legal parents of the child, and that is the genetic fathers. This is because we must, as a rule, accept that the genetic father of a child can be established as the legal father of the child. The fact that we must accept this means, in turn, that the procedure for this should be as simple and efficient as possible. other system can result in negative consequences for parties involved, and especially for the child. Parenthood for prospective parents other than the genetic fathers should, in cases where the issue arises, continue to presuppose a stepchild adoption or an ordinary adoption. There are no reasons to make any amendments at present to the regulations about adop- tion after a surrogacy arrangement abroad. But there are reasons to carry out information measures in the area. We return to this matter and our other deliberations in the next section. In our opinion, the starting point should be that we in recognise foreign of parenthood through judgments or acknowledgements that have been based on a fact that can constitute grounds for a corresponding under Swedish law. Another starting point should be that, as a rule, we do not recognise other . What has been said here means the following. It should be possible to accept a foreign of mater- nity in if it is based on the established mother having carried and given birth to the child. It should be possible to accept a foreign of paternity if it is based on a presumption of paternity or a genetic link between the child and the established father. It should also be possible to accept a foreign of paternity, in the same way as a foreign of parent- hood, if it is based on the person established as the parent having consented to the person’s spouse, registered partner or cohabiting partner undergoing assisted fertilisation. The of Appeal has, as already mentioned, issued two decisions that deviate from what is stated above. In these rulings the Court has, namely, accepted a foreign of pater- nity for a man who could not have been established as the legal father under Swedish law. The existence of these two decisions necessitates the insertion of a new ground for refusal in the Inter- national Paternity Act. Under the new ground for refusal, a foreign of paternity shall not be valid in if the child has been conceived through insemination or fertilisation outside the body, the treatment has been carried out on a person other than the spouse or cohabiting partner of the established father and the treatment has been performed using the sperm of another man. If a foreign of paternity refers to two men and one of them is also the genetic father of the child, what is stated in the ground for refusal shall only apply to the other man. Thus the part of the that refers to the genetic father of the child does not need to be invalid. We have already concluded that we must, as a rule, accept that the genetic father of a child can be established as the legal father of the child and that this procedure should be as simple and efficient as possible. We therefore propose expanding the competence of Swedish social welfare committees and courts to establish paternity after a surrogacy arrangement abroad. Under this proposal, it would be possible for a Swedish social welfare committee or a court to establish paternity, under Swedish law, if the child is habitually resident in another country, the refers to a man who is habitually resident in , the ground for paternity is that the child was conceived using the man’s sperm, and the child does not have any other legal parents in its country of habitual than the man and his spouse, registered partner or cohabiting partner. This part of our proposals necessitates certain amendments to the International Paternity Act and consequential amendments to that Act. However, we cannot see that any other amendments need to be made to legislation in order to deal with the problems identified. can we see that there is any need to introduce any special transitional regulations as stated in our terms of reference. However, information measures need to be carried out about surrogacy arrangements abroad. Our view is that the Government should commission the Swedish Family and Parental Support Authority to carry out these information measures in collaboration with other relevant authorities and organisations. Parenthood when assisted fertilisation is carried out at home or done abroad Under the present regulations in the Children and Parents Code, consent can be a ground for paternity or parenthood according to Chapter 1, Section 9 of the Code in the case of assisted fertilisation in the Swedish health system. As regards different-sex couples, the same rule applies when the couple have carried out a “home insemi- nation” or have undergone a treatment abroad. So, paternity can also be based on consent in such cases. Our remit is to consider whether the latter regulations should also apply to female same-sex couples. As of it will be possible for single women to under- go insemination or fertilisation outside the body in the Swedish health system. This change means that our deliberations in this part of the inquiry also cover single women. One important starting point for consent to be a ground for paternity or parenthood under Chapter 1, Section 9 of the Children and Parents Code should be that the prospective child has a right to information about its genetic origins. The regulations should therefore guide behaviour and encourage potential parents to choose the assisted fertilisations that give the child such a right. Another important starting point for consent to be a ground for paternity or parenthood should be that society has reasonable possibilities of insight and control. The third and final starting point is that, as far as possible, different-sex and same-sex couples should be treated in the same way in these cases. In the light of the starting points set out here there are reasons to let our deliberations cover both different-sex and same-sex couples. There are also reasons to pro- pose regulations to the following effect. It should no longer be possible for consent to be a ground for paternity in a case of home insemination. should it be possible for it to be a ground for parenthood in such an insemination. these cases legal parenthood for a person who has not carried and given birth to the child should require a stepchild adoption. Consent should continue to be a possible ground for paternity in cases of assisted fertilisation in foreign health services. At the same time, there should also be a requirement that the treatment has been performed at a competent health care facility abroad and that the person who was conceived through the treatment has a right to information about the identity of the donor. This should also apply to parenthood under Chapter 1, Section 9 of the Children and Parents Code. Here, too, the regulations will be the same for different-sex couples and female same-sex couples. The rule in Chapter 1, Section 3, second paragraph of the Children and Parents Code that enters into force on and that means that paternity or parenthood shall not be established when a single woman has undergone assisted fertilisation in the Swedish health system should not apply to home inseminations. So, in these cases a paternity or parenthood should continue to be established for the child. But it should be possible for a single woman to be- come a single parent through assisted fertilisation in a foreign health service. However, the treatment must have been performed at a competent health care facility abroad and the person who was conceived through the treatment must have a right to information about the identity of the donor. Our deliberations necessitate certain amendments to Chapter 1 of the Children and Parents Code. But they do not necessitate any amendments to other statutes. Parenthood in cases of gender change Previously there was a requirement that persons who changed their gender from male to female (MTF) or from female to male (FTM) had to be sterilised or to be without reproductive capacity for some other reason. This “sterilisation requirement” was abolished on 1 2013 and today it is possible for an FTM to give birth to a child. It is also possible for an MTF to contribute sperm to the creation of a child. When the sterilisation requirement was abolished, the Govern- ment stated that regulations concerning parenthood can be applied analogously in cases where a person has changed gender. The same would apply, according to the Government, to other relevant statutes. At the same time, the Government stressed the importance of following the application of the law in the area closely. Our remit is to consider whether the abolition of the sterili- sation requirement and the ban on retaining reproductive capacity in cases of gender change can result in problems when applying the legislation concerning parenthood. We are also to consider whether there is a need to amend that legislation or any other legislation. Our investigations, which have included contacts with , , Bisexual, Transgender and Queer Rights (RFSL) and the , have shown that the abolition of the sterilisation requirement has led to certain problems in applying legislation in the population registration service. As an example of problems in applying legislation it can be mentioned that the has registered an FTM who had given birth as the mother of the child. This means that there are reasons to consider amendments to the regulations concerning parenthood. Our assessment is that parenthood in these cases should be classed and registered in a way that reflects a parent’s legal gender. An FTM who gives birth to a child should thus be classed and registered as the legal father of the child. In addition, parents who have changed gender should have the same rights, benefits and obligations as they would have had if they had not changed gender. An FTM who gives birth to a child should have the same rights, benefits and obligations as a legal mother. If an FTM is unmarried when the child is born, he should thus have sole custody of the child (cf. Chapter 6, Section 3 of the Children and Parents Code). In view of this we propose introducing a regulation to the following effect in Chapter 1 of the Children and Parents Code. An FTM who gives birth to a child shall automatically be regarded as the father of the child. The person shall, at the same time, be covered by what is said in other chapters of the Code and other statutes about a mother and maternity. The fact that pater- nity in these cases shall follow automatically means that it does not need to be established through an acknowledgement or a judgment. However, the parenthood of the person who did not give birth to the child shall be established in the usual way. There are exceptions in cases where an FTM has undergone assisted fertilisation as a single person under the rules in Section 3, second or third paragraph. For, in such a case, it is possible for an FTM to be the child’s only legal parent.