A Legal Overview of the Nordic Countries! Senior Advisor Salla Silvola! Ministry of Justice, Finland!!

Transcription

1 A Legal Overview of the Nordic Countries! Senior Advisor Salla Silvola! Ministry of Justice, Finland!! 1

2 Structure of presentation! 1. Overview of current domestic legislation in the Nordic countries on surrogacy! 2. Upcoming domestic reforms in the Nordic countries! 3. Overview of current legislation on private international law regulation on legal parenthood in the Nordic countries! 2

3 I Domestic legislation in the Nordic Countries! 3

4 Iceland! Act on Children (2003):! A woman who bears a child conceived by artificial insemination is considered to be his mother (art. 5)! Act on Artificial Fertilisation (1996):! Artificial fertilisation performed on a woman who intends to carry a child for another woman, and has agreed before the pregnancy to give up the child immediately after the birth, is prohibited (art. 1 and 5)! 4

5 Denmark! Children Act (2001):! The woman who gives birth to the child as a result of assisted fertilisation is considered as the mother of the child (30 ).! An agreement on the transfer of the child from the mother to another after birth is invalid (31 ).! Act on Assisted Fertilisation (1997):! Forbids giving fertility treatment in situations where an agreement on surrogacy is deemed to exist (13, criminalisation in 29 )! 5

6 Norway! Children Act (1981):! The woman who has given birth to the child shall be regarded as the mother of the child. An agreement to give birth to a child for another woman is not binding (2 ).! Act on Biotechnology (2003):! Fertilised egg shall not be inserted into the uterus of another woman than the one from whom the egg has been derived (2-15 ).! 6

7 Sweden! Parental Code (1949):! If a woman gives birth to a child as a result of assisted fertilisation of an egg from another woman, the woman giving birth shall be regarded as the mother of the child (Ch. 1, 7 )! Act on Genetic Integrity (2006):! Forbids insertion of fertilised egg to a woman, if both the egg and the sperm has been donated (Ch. 7, 3 ).! 7

8 Finland! No written law on motherhood! According to legal practice, child s mother is the woman who has given birth to the child! Act on Assisted Fertility Treatments (2006) prohibits provision of assisted fertility treatments, if there is reason to presume that the child will be given up for adoption.! IVF-assisted surrogacy is forbidden, even altruistic measures! Adoption Act (2012) prohibits granting adoption e.g. if any remuneration for the adoption has been given or promised.! 8

9 Finland! Prior to Act on Assisted Fertility Treatments (i.e. prior to , when the Act entered into force)! Gap in legislation allowed fertility clinics to provide non-commercial IVF-surrogacy! Surrogate mothers were either close relatives or friends/volunteers! During approx. 20 surrogacy arrangements, 11 pregnancies, 10 births (9 singletons, 1 twins, 1 miscarriage)! Reported cases of depression (2/10), legal dispute of motherhood (1), uncertainty of paternity during pregnancy (1)! 4 couples from other Nordic countries (SE, NO, DK)! 9

10 Denmark! Finland! Iceland! Norway! Sweden! Definition of mother (IVF)! Birth mother! Birth mother! (unwritten law)! Birth mother! Birth mother! Birth mother! IVFassisted surrogacy! Banned! since 1997! Banned since 2007! Banned since 1996! Banned since 1987! Banned since 1988! Traditional surrogacy! Bans assisting contact! No provision! No provision! Contract not binding! No provision! Commercial adoption! Banned! Banned! Banned! No provision! Banned! 10

11 Summary! IVF-assisted surrogacy is currently prohibited in all of the Nordic countries! Surrogacy arrangement without assisted fertilisation (traditional surrogacy), is currently allowed in all of the Nordic countries, provided it is not assisted, advertised (DK) or enforced (DK, NO).! Specific provisions on enforcement not necessary due to adoption legislation (FI, IS, SE).! Commercial arrangements prohibited via adoption legislation.! 11

12 II Upcoming domestic reforms in the Nordic countries! 12

13 Upcoming reforms! Denmark! Finland! Iceland! Norway! Sweden! National Ethics Committee View!! Negative! (2008)! Positive in restricted cases! (2011)! Not known! Majority negative! (2011)! Majority positive in restricted cases! (2013)!! Ongoing legal reform on surrogacy!! No! No (2013): further evaluation needed! Yes (2012): mandate to allow altruistic surrogacy! No! Yes (2013): mandate does not direct outcome! 13

14 III Regulation and case law on cross-border surrogacy in the Nordic Countries! 14

15 Common Nordic legislation! Agreement on common Nordic legislation on recognition of paternity decisions in the Nordic area reached in 1979! National legislation in each of the Nordic countries! Paternity decisions given by Nordic courts or confirmed by Nordic public authorities recognised within the Nordic area! 15

16 Finland! No separate legislation addressing cross-border surrogacy! General international private law regulation on paternity apply! No corresponding rules on motherhood! National Advisory Board on Social Welfare and Health Care Ethics! Estimate: 5 couples seeking surrogacy abroad annually! Recent case law from the Helsinki Court of Appeal and Espoo District Court on cross-border surrogacy! Russia! India! Inquiries made to interest groups also re: USA and Spain! 16

17 Finland! July 2012: Helsinki Court of Appeal confirmed paternity of the intended father of twins born by surrogacy in Russia! Russian legislation specifically allows surrogacy for married couples! According to Russian legislation, intended parents are considered as legal parents of the child! Russian birth certificate considered as a foreign decision that is recognised according to international private law provisions of Finnish Paternity Act! Ordre public did not apply no mention of commercial aspects! 17

18 Finland! October 2012: Helsinki Court of Appeal did not confirm the intended mother as custodian on the basis of a Russian birth certificate! According to the Act on the Custody and Right of Access of Children, foreign law shall be applied directly to the custody of children, if the custody of the child is determined on the basis of law or on the basis of agreement (Haag Convention 1996)! i.e. Helsinki Appeal Court could not confirm the birth certificate as a decision made on custody, as Russian law on the custody of the children should have been applied directly by the Local Register Office! Intended mother was accordingly registered as a joint custodian of the children.! 18

19 Finland! March 2013: Espoo District Court confirmed the intended mother as an adoptive parent of the twins born in Russia on the basis of best interests of the child (intra familial adoption)! Consulting fee for the Russian Law Firm and the fee paid to the surrogate mother were not interpreted as remuneration paid for adoption! Even if it could be interpreted as such, the best interests of the child favors, as the overriding principle, granting the adoption.! 19

20 Finland! July 2013: Helsinki Court of Appeal confirmed (votes 6 to 1) paternity of intended (genetic) father of a child born in India via commercial surrogacy arrangement although:! India has no legislation on surrogacy! Indian surrogate mother was married at the time of birth! According to both Finnish and Indian law, pater est rule is normally applied! Commercial aspects were known to exist! 20

21 Finland! Helsinki Court of Appeal July 2013:! 1. Is the birth certificate provided by the Municipal Corporation of Greater Mumbai a legal decision by a foreign authority?! Majority accepted evidence of Indian law, which rebutts the pater est rule in surrogacy arrangements 2. If it is, are there legal obstacles for its recognition in Finland i.e. can ordre public clause be applied?! Was the fee paid to the clinic/surrogate mother considered to be against the international commitments and against the best interests of the child? 21

22 Finland! Helsinki Court of Appeal July 2013:!!Majority accepted that commercial surrogacy arrangement is distinguishable from commercial adoption (Haag 1993, UN optional protocol 2000):! 1. Child is genetically related to the intended parents and not related to the gestational mother or her husband! 2. Fee paid to the surrogate mother was paid to compensate pregnancy and related costs (medical costs, loss of income and non-pecuniary loss), not transfer of parenthood! 3. Effects on the free will of the surrogate cannot be evaluated similarly, as the agreement was concluded before the arrangement (and not upon the transfer of the child?)! 22

23 Finland! Helsinki Court of Appeal July 2013:! Although the parents had obviously aimed to circumvent Finnish prohibition on surrogacy arrangements, children should not be discriminated or punished for the actions of their parents (CRC, art. 2)! If paternity was not confirmed, the child would be left without nationality and his right to know and to be cared for by his parents would be endangered (CRC, art. 7)! No other particular aspects, which point to harming the child or the surrogate mother! Overall, the majority saw no reason to apply the ordre public clause [in this particular case]! 23

24 Finland! Dissenting opinion:! No sufficient evidence that the birth certificate conveys the legal father-child relationship even in India! Even if there was, ordre public clause should be applied due to:! fee paid for the arrangement obvious aim to circumvent national law lack of legislation in India (to protect the dignity and rights of the parties involved) reported cases of mistreatment in India 24

25 Norway! Case on recognition and application of ordre public rule in a surrogacy case involving custodial dispute between intended parents! Child had been born to an American surrogate mother! Couple registered the child in Norway as the joint child of the married Norwegian intended couple! Couple separated shortly after birth. Child lived with the intended mother. Father sought sole custody of the child based e.g. on the fact that according to Norwegian law, contracts on surrogacy are not binding.! 25

26 Norway! Norwegian court had to decide whether:! 1. The agreements and court rulings made in California had any legal effect in Norway! No rules on recognition of foreign decisions on motherhood Both the District Court and the Court of Appeal ruled in favor as the parties had made a valid agreement on jurisdiction 2. Their content was in accordance of ordre public and could be recognised in Norway! the aim of the Norwegian rule on the non-binding nature of surrogacy contracts was to prevent relying on the contract between the surrogate mother and the intended couple, not between the intended couple the best interests of the child required that the intended mother should be recognised as the legal mother, as the surrogate mother was not going to have the role of the mother in the child s life. 26

27 Norway! New interim legislation on parenthood of children in Norway who have been born via surrogacy abroad! Present or former spouse or partner of the legal father may apply for legal parenthood of a child, if! the surrogate mother or her legal representative consents the child, if 12 years old, consents father s consent can be replaced by sufficient documentation of common aim to bring up the child together Child s habitual residence must be in Norway! Application must be made before January 2014.! 27