Foreign surrogacy in Denmark is becoming less restrictive

 Above the Law has the story:

Denmark Passes New Pro-Surrogacy Regulations. The new rules in Denmark focus on two areas of surrogacy.  By ELLEN TRACHMAN  February 14, 2024

 "On February 5, 2024, the Danish government announced new surrogacy-supportive rules scheduled to come into effect on January 1, 2025. The rules address parentage for families formed by surrogacy — including commercial (compensated) surrogacy outside of Denmark — as well as for families formed by altruistic (noncompensated) surrogacy within Denmark.

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"In Denmark, compensated surrogacy is illegal, and altruistic surrogacy has traditionally fallen into a legal gray area, pushing most hopeful parents who want to have a genetic connection to their child, but who are unable to carry a pregnancy themselves, to go abroad. The Danish government estimates that about 100 children are born to Danish parents each year by surrogacy outside of Denmark, while about five children each year are born within Denmark in altruistic surrogacy arrangements.

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"Denmark has a history of denying parental rights to the intended parents of children born by surrogacy abroad. But on December 6, 2022, the European Court of Human Rights ruled against Denmark in K.K. and Others v. Denmark. In that case, a married heterosexual couple had twins with the assistance of a Ukrainian surrogate. Under Ukrainian law, both Danish intended parents were recognized as parents of the child, and the surrogate was not a parent of the child.

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"The ECHR found that Denmark’s refusal to recognize the parent-child relationship between the mother and child was a human rights violation — not a violation of the mother’s human rights, but of the two children, to have a recognized legal relationship with their mother.

To its credit, Denmark is reacting to the ECHR’s definitive ruling. In the announcement by the Danish government last week, the government made it clear that the country’s new rules are intended to go beyond the minimum requirements of the ECHR to merely not violate the human rights of Danish children.  (The bare minimum requirement would be to just allow stepparent adoptions.) Instead, the Danish government’s new rules go farther to protect children and their parents.

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"The new rules permit Danish family courts to quickly make a decision on parenthood in the case of a foreign surrogacy agreement, even permitting a court ruling to be made prior to the family’s return to Denmark. The rules also require that the court assess the best interest of the child, but with a presumption that it is, of course, in the child’s best interest to have a timely recognition of their parents.

"Moreover, the court decisions are permitted to be retroactive to the birth of the child, permitting parents to have access to parental leave work benefits, inheritance rights, and all other benefits of that legal relationship. And, in contrast to a stepparent adoption, the new rules will allow recognition of the parent-child relationship with the mother or nongenetic parent even if parents have separated, or if one parent died before they had a chance to apply for parenthood.

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"In a stated attempt to address the risk of child trafficking, the rules require that at least one intended parent be genetically related to the child. Additionally, the surrogate is required to confirm in a notarized declaration after the birth that she wishes to transfer parenthood of the child to the intended parents."