On February 5, 2024, the Danish government announced that a set of new surrogacy-supportive rules are scheduled to come into effect on January 1, 2025. The legislation targets the issue of parentage in families created through both commercial (compensated) and altruistic (noncompensated) surrogacy. The push for these changes has come amidst recurring problems faced by families formed through surrogacy, both within Denmark and abroad.
Looking into Danish society, it’s found that hopeful parents unable to bear children, who want to maintain a genetic link with them, often make a choice to go out of the country due to the uncertain legal status of surrogacy practices in the nation. In a given year, it is estimated that around 100 children are born through surrogacy outside of Denmark to Danish parents, while only about five each year are born through altruistic surrogacy in the country. Lambang and Kaspar, a married Danish same-sex couple, who chose surrogacy abroad, voiced their family story to shed light on the legal complications in Denmark, arguing for better laws in the country.
In accordance with the European Court of Human Rights’ verdict against Denmark in the caseK.K. and Others v. Denmark, the government has taken strides to enhance the law. The past judgments by Danish courts failed to recognize the intended mother’s legal claim over her child, citing the mother’s lack of genetic link as the cause. Fortunately, the new rules will go beyond merely avoiding violations of human rights and extend to protect children and their parents more effectively.
The newly enforced regulations will cater to two main aspects of surrogacy. First, it tackles the issue of children who are born through surrogacy abroad, enabling Danish family courts to quickly arrive at a decision regarding parenthood. The rules also permit these court judgments to occur before the families return to Denmark. Secondly, the Danish government has approved a process for recognizing parenthood in altruistic surrogacy agreements within Denmark. Here, the parental rights are not only extended to fathers who have a biological tie to the child, but also to the mothers or non-genetic parents. In addition to this, the introduction of these rules presents a new precedence in Denmark’s legal handling of surrogacy, marking the first explicit approval of procedures for recognizing parentage in altruistic surrogacy arrangements within the country itself.
However, the new law also imposes several necessary conditions to ensure children are not trafficked. One such condition is a written confirmation from the surrogate mother post-childbirth, stating her wish to transfer parentage to the intended parents.
The new law has been appreciated widely, as many feel it will provide an improved level of peace and security for Danish families who opt for surrogacy. Though much needs to be done, the initiative illustrates Denmark’s commitment to recognizing the struggles faced by families opting for surrogacy and their active steps to revamp its outdated legal framework.
To learn more about the story, visit Above the Law.