Denmark’s New Surrogacy Laws are a Breath of Fresh Reality
Denmark is consistently ranked as one of the happiest countries in the world.
A vibrant economy, strong social fabric, and generous social services that support parents and families are often cited as some of the main reasons for this population’s happiness.
However, children born through surrogacy arrangements and their intended parents have not yet benefited from the celebrated Danish system. Until now.
The Danish government has announced a new legal framework for international commercial surrogacy and domestic altruistic surrogacy that is the first of its kind in Europe (1).
In this article, I will review the legislation and what it could mean for the rest of Europe.
Surrogacy in Europe
Surrogacy in Europe falls into one of three legal frameworks: Illegal, altruistic only, or no legal framework (2). For the ‘no legal framework’ countries, this means that while it technically could be pursued, the legal challenges of parentage and forming a life with your child make it effectively impossible.
BabyMoon Family has recently reported on the promising legal advances for surrogacy that have been developing in Ireland (https://www.babymoonfamily.com/original-articles/ireland-international-surrogacy OR https://medium.com/@babymoonfamily/ireland-is-taking-a-modern-regulatory-approach-to-international-surrogacy-and-the-european-union-6a0a7461c9bf). Ireland is trying to put a framework in place to legislate around international commercial surrogacy, but the process has dragged on for years and left families stuck in an immigration purgatory. This includes two dads and their children who are unable to move from New York back to Ireland until their children can be recognized by the Irish state (3).
Denmark is taking a much more pragmatic approach that is steeped in the reality of surrogacy and focuses on what is truly important: Children and families.
Denmark and Surrogacy: Present and Future (4)
Every year, Denmark welcomes approximately 100 children born through international commercial surrogacy and 5 through domestic altruistic arrangements.
The present legal framework in Denmark does not recognize surrogacy arrangements because Denmark, like much of Europe, follows mater semper certa est, which states that the woman who gave birth is always the legal mother of the child.
Therefore, whether the surrogacy is through an international commercial arrangement or a domestic altruistic one, the egg donor is never considered the mother. The gestational carrier (GC) is always the mother, the sperm donor is the only recognized father, and the other intended parent — whether a woman or another man — must adopt the child in order to have any legally recognized parentage.
This means that the child and one of the parents are in what the Danish term a ‘legal void’ (‘juridisk tomrum’ in Danish). For the estimated 4 to 6 months before the adoption is finalized, the adoptive parent has no legal rights, and if anything were to happen to the one recognized legal parent or if their relationship were to dissolve for any reason, that adoptive intended parent would not be seen in the eyes of the Danish law as a parent and could lose their child.
It’s important to note that Denmark has not decided to change this legal framework on its own accord. The change has come due to a challenge at the European Court of Human Rights (ECHR) (5). This court case involved a straight, Danish couple who had twins via commercial surrogacy in 2013 in Ukraine. Denmark refused to acknowledge the Danish woman as the twin’s mother, and her process to try and adopt them dragged on for over 6 years before the case was finally elevated to the ECHR. In its ruling, the ECHR stated that “the best interests of the child” protects the rights of children produced through surrogacy and that non-recognition of a parent-child relationship is therefore a violation of the children’s rights.
Denmark took this legal retribution to heart and even improved upon the ECHR’s request to acknowledge parentage by making it easier and possible to recognize parentage either before or as soon as possible after the birth of the child.
In terms of international commercial surrogacy, the new Danish law states that the application for parentage can be submitted from abroad, provided the following conditions are met:
At least one intended parent must be genetically related to the child.
After the child’s birth, the GC has signed a notarized statement that she wishes to hand over the child.
Although information is not detailed in the press release and statements from the Danish government, there is mention that a registry of information on international GCs will be collected, similar to what has been mentioned in Ireland. The English translation reads as follows:
‘Given the complex ethical and legal issues that international agreements in particular contain, there should be information available to prospective parents about points of attention in relation to entering into surrogacy agreements abroad. This could be, for example, the surrogate mother’s age and financial situation as well as her physical and mental condition and living conditions.’
While the current statement does not mandate collection of information on the GCs age; financial situation; and physical, mental, and living conditions, it does suggest that such information could be asked for by the Danish authorities.
For domestic altruistic surrogacy, the new process allows for the intended parents to be recognized as parents even before the child is born, given the following criteria are met:
The GC is over 25 years old, is not under guardianship, and should have given birth to at least one child.
The GC does not receive compensation and must have a close relationship with the intended parents. If there is not a close relationship (how this will be defined remains to be determined), there will be a presumption that the agreement is commercial and thus does not follow the Danish rules.
The GC retains the right to make decisions about her own body, including whether to terminate the pregnancy, and can withdraw from the agreement.
The GC must reside in Denmark at the time of entering into the agreement and becoming pregnant, but she will not have to reside in Denmark for the duration of the pregnancy, as stated in the previous law.
Also, the Danish government has crucially linked these legal changes to changes in the country’s parental leave policies, so that all intended parents of children born through international or domestic surrogacy arrangements have the ability to take time off and receive social support, the same as any other Danish parents.
Lastly, and most importantly to the BabyMoon Family community, these legal changes do not differentiate based on sexual orientation, gender identity, or marital status of the intended parents, so gay / bi / lesbian / queer singles and couples are all equal in the eyes of the Danish law.
The Future of Surrogacy in Europe
The Danish politicians who have drafted this law have taken the opportunity to state their support for the changes given the protection it offers the children and families in Denmark.
The Minister of Social Affairs and Housing Pernille Rosenkrantz-Theil said:
“Quite a few children come to Denmark as a result of commercial surrogacy agreements abroad, and here at home some children come into the world through altruistic surrogacy agreements. We are committed to giving those children the best possible start in life. In Denmark, we can neither promote nor prevent the use of surrogate agreements in other countries. But we will have to deal with the children who have come into the world — even if it is a complicated area with many ethical and legal dilemmas. Those children must have the right to their family. I am therefore pleased that with this agreement we are ensuring stability and legal security.”
Another politician, Trine Bramsen, equality rapporteur for the Social Democratic Party, states further support for the gay / bi / queer dads in Denmark, saying:
We cannot make it known to the children who have two fathers that we do not legally recognize their family form. There can be many attitudes towards surrogate agreements — but that does not change the fact that the children who have two fathers must experience that we as a society recognize them and their family. Therefore, it is also gratifying that the expert group that was set up in 2022 has reached a model for which there is political support. That was precisely the purpose when we set up the expert group.
However, not everyone in the Danish government is thrilled with the new law, expressing their begrudging acceptance of this change almost as a necessarily evil in the world.
Mette Abildgaard, family spokesperson for the Conservative People’s Party, said:
The Conservative People’s Party is not in favor of commercial surrogacy, which we believe is ethically indefensible. However, we cannot close our eyes to the fact that approximately 100 children are brought to Denmark from abroad each year as a result of this, and these children are today in a legal no-man’s land when they come here. With this agreement, we secure the children’s rights, and it is thus for their sake that this agreement has been made — they do not have to pay the price for their parents’ decisions as infants.
I believe this last quote is crucial for the future of surrogacy in Europe.
Europe can no longer turn a blind eye to the fact that more and more families — especially rainbow families — are being formed through international commercial surrogacy. They also cannot continue to deny these children and parents their rights and support, as reinforced by the ECHR.
Therefore, I believe that Europe’s way forward is by following the path taken by Denmark. Denmark fought and lost against the ECHR, but by 2025, they will have a practical surrogacy policy that supports and protects the children born through surrogacy anywhere in the world.
They are doing what governments should do: Protect their citizens.
Starting in 2025, straight / gay / bi / queer single and married parents through surrogacy can join other Danes in celebrating their country’s happiness.
Hopefully, this can serve as a model for other European countries who refuse to acknowledge the reality of international surrogacy…Italy, I’m looking at you (https://www.babymoonfamily.com/original-articles/italy-attacks-surrogacy-rainbow-families OR https://medium.com/@babymoonfamily/why-every-lgbtq-person-especially-intended-parents-ips-should-be-furious-at-italy-right-now-cfb8a4382532).
References: