Surrogacy Arrangements and Legal Parenthood : Swedish Law in a Comparative Context
Abstract: Surrogacy arrangements have become an increasingly popular way for childless people to build a family. Yet many jurisdictions do not regulate surrogacy. Even in the ab-sence of surrogacy regulation, if a jurisdiction has no specific legal rules that clarify parenthood following surrogacy, the result is often uncertainty in relation to the legal parental status of the surrogate mother, her spouse or cohabitant, any possible donors, and the commissioning parents. This, in turn, leaves the surrogate-born child’s family law status uncertain. This thesis examines the legal aspects of parenthood and how it is, or could be, determined in Sweden following surrogacy arrangements. Important aims are to estab-lish whether the current national laws regulating family law can sufficiently protect the interests of the surrogate-born child and the parties to surrogacy arrangements, with an emphasis on interests connected to family law status; to examine the ways in which other jurisdictions (England and Wales, and Israel) have responded to similar issues; and to identify problems and propose alternative solutions in relation to the specific issue of establishing legal parenthood following surrogacy at a domestic level, either with or without State regulation of surrogacy agreements. Consideration is given to whether it might be appropriate to re-evaluate or qualify the existing presumptions of parenthood, in particular the unwritten presumption of maternity. Several alternatives for the transfer of legal parenthood from the surrogate mother, and her spouse or cohabitant as the case may be, to the commissioning parent or parents are also examined. In addition, the ethical implications of surrogacy ar-rangements are explored in order to provide an insight into the way in which subcon-scious or hidden values might make it difficult for a State to regulate certain areas of private life such as parenthood. The starting point for the thesis is that it is in the best interests of the child to have parents at birth and that this interest must be prioritised over an intended parent’s interest in becoming a parent. This view is based on and is consistent with existing Swedish law and policy.
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