Political Agreement in Denmark on International Surrogacy Agreements

On 5 February 2024, the Danish government, along with most opposition parties, reached an agreement regarding children born through surrogacy agreements. This political accord aims to address and improve the legal status of children born through surrogacy, particularly in the context of foreign surrogacy arrangements, ensuring their right to legal parents, without the requirement of a stepparent adoption.

Context and Motivation for the Agreement

The agreement recalls that surrogacy agreements are complex, both ethically and legally. Denmark does not have influence over surrogacy arrangements entered into in other countries. Thus, Denmark cannot regulate or monitor whether these agreements involve exploitation of women or other ethical concerns. However, recognizing the challenges and legal gaps that arise from these arrangements, the Danish political agreement has chosen to focus on the children who are born as a result of such agreements, rather than trying to prevent or promote surrogacy abroad.

Currently, Danish law does not recognize surrogacy agreements, meaning that the woman who gives birth to the child is considered the legal mother, even if she has no genetic connection to the child. This legal framework has created a “legal void” for children born to intended parents who use surrogacy, often leading to uncertainty regarding the legal relationship between the child and at least one of its intended parents. In a judgment of December 2022 (reported for the blog here), the European Court of Human Rights held that this Danish solution was incompatible with the right to family life.

The Treatment of Foreign Surrogacy Arrangements

The agreement is mainly concerned with children born abroad via commercial surrogacy. It is estimated that, each year, around 100 children are born through foreign surrogacy agreements and later brought to Denmark. The agreement proposes that the Familieretshuset (The Agency of Family Law) should be able to make swift decisions regarding parenthood for these children upon their arrival in Denmark.

This would replace the current procedure, where the non-biological parent must go through a stepparent adoption process, which cannot be initiated until at least three months after the birth. This adoption process has created a period of legal uncertainty for children and families, leaving them in a “legal void” until the adoption is formalized. Under the new system, intended parents can apply for legal parenthood from abroad before the child arrives in Denmark, ensuring that the child’s legal relationship with both parents is established from birth.

The agreement stipulates several conditions to prevent exploitation and ensure ethical standards. In the case of international surrogacy, at least one of the intended parents must have a genetic connection to the child. Additionally, the surrogate mother must confirm her consent to transfer parenthood after the birth through a notarized declaration from the child’s country of birth.

By allowing legal parenthood to be recognized retroactively from the child’s birth, the agreement respects the child’s right to know their background, with the surrogacy agreement and notarized declaration forming part of the legal record.

Impact on Domestic Surrogacy Arrangements

Although commercial surrogacy remains illegal in Denmark, altruistic surrogacy (where no payment is involved) is permitted, though rarely practiced. The agreement extends the same legal protections to children born through altruistic surrogacy within Denmark. Currently, these children also face a period of legal uncertainty because the non-biological parent must adopt the child after birth.

With this agreement, altruistic surrogacy agreements can be pre-approved and registered with Familieretshuset before pregnancy occurs. This allows the intended parents to be recognized as the legal parents from birth, thus removing the need for a stepparent adoption and providing immediate legal security for the child.

In altruistic surrogacy within Denmark, several requirements are outlined, including that the surrogate mother is at least 25 years old, has given birth to at least one child previously, and is not under guardianship. Furthermore, no payment may be made to the surrogate mother, and she must retain full autonomy over her body during the pregnancy, including the right to withdraw from the agreement.

Implementation and financial considerations

The new framework will take effect on 1 January 2025, with associated costs funded through the 2024 Finance Act. These funds will cover the processing of parenthood applications, parental leave payments, and the administration of these new rights. Familieretshuset will monitor the development of surrogacy cases and provide updates on the number of applications received during the first year after the agreement’s implementation.

Conclusion

This political agreement represents a step forward for Denmark in terms of ensuring the rights of children born through surrogacy. By providing a clear legal path to parenthood for children born either internationally or through altruistic surrogacy in Denmark, the government and the involved parties are addressing a legal gap.