Surrogacy Arrangements and Legal Parenthood

373 Pages·2013·1.48 MB·English

Surrogacy Arrangements and Legal Parenthood

Jane Stoll

Surrogacy Arrangements and Legal
Parenthood
Swedish Law in a Comparative Context

Uppsala 2013
Dissertation presented at Uppsala University to be publicly examined in Auditorium
Minus, Gustavianum, Uppsala, Friday, November 1, 2013 at 10:15 for the degree of
Doctor of Laws. The examination will be conducted in English.

Abstract
Stoll, J. 2013. Surrogacy Arrangements and Legal Parenthood: Swedish Law in a
Comparative Context. Juridiska institutionen. 373 pp. Uppsala
ISBN 978-91-506-2369-7.

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.

Keywords: surrogacy, surrogate motherhood, surrogacy arrangements, surrogacy and
parenthood, parenthood, parentage, legal parenthood, legal parentage, establishing
paternity, establishing maternity, parental order, parentage order, Sweden, England
and Wales, Israel

Jane Stoll, Uppsala University, Department of Law, Box 512, SE-751 20 Uppsala,
Sweden.

© Jane Stoll 2013

ISBN 978-91-506-2369-7
urn:nbn:se:uu:diva-207549 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-207549)

Printed by Elanders Sverige AB, 2013
For Daphne

Acknowledgements
This thesis is the culmination of my doctoral studies. For me it was
intended to be a two-year project since I had already completed a Li-
centiate of Laws degree which corresponds to the first two years of the
degree of Doctor of Laws. The thesis has taken a little over two and a
half years (working time) to complete. During this time, surrogacy has
been firmly placed on the public agenda in Sweden and the legal is-
sues surrounding surrogacy arrangements – after being static, or side-
stepped, for almost 30 years – are now receiving a great deal of atten-
tion. This has made the project even more interesting than it would
have otherwise been and I feel privileged to have had the opportunity
to immerse myself in a research area at a time when it is receiving so
much interest in the public domain. There is a downside, however.
The fact that change is underway highlights the reality that a legal
researcher’s work is never really done. Specifically, the legal situation
in Sweden concerning parentage following surrogacy agreements is
now in a state of flux. To this end, I have found it difficult to let this
project go. It makes me feel as though I am in an unfamiliar place,
hunting a dangerous, constantly-moving target with a rifle containing
only one bullet. But I know that unless I stop procrastinating and pull
the trigger, I will never get home. Before I take my last remaining
shot, however, I would like to extend my sincere thanks to all of those
who have supported me throughout this project.
First and foremost, I wish to acknowledge the support and guidance
I have received from my supervisors Professor Anna Singer, and Jus-
tice of the Supreme Administrative Court Elisabeth Rynning (former
Professor of Medical Law). For me, it has been a privilege to have had
both Anna and Elisabeth by my side not only while I completed my
Licentiate of Laws thesis in 2007/2008 but also for the duration of my
doctoral project. Throughout this time, they have provided me with
inspiration and motivation, freely shared their wisdom and experience,
and challenged me so that I could improve as a researcher. Something
I have really appreciated is that, as supervisors, Anna and Elisabeth
work extremely well together. And they always seem to have the same
goals, even though they do use different methods to meet their peda-
gogical objectives (a bit like the regulatory methods used by Israel,
and England & Wales where it concerns the regulation of surrogacy
arrangements). It is difficult for me to express the extent of my appre-
ciation and gratitude. Thank you both so much!
I am indebted to Professor Michael Freeman and Kajsa Walleng for
taking the time to read my text. Thank you both for you valuable
comments!
Special thanks also to my incredibly talented daughter Alexis Win-
ter who designed and illustrated the book cover.
This thesis project has been financed by the Faculty of Law at Upp-
sala University and the Sigrid and Anna Åbergssons Stipendium. For
this I would like to express my thanks. I am also grateful to the Facul-
ty for providing me with a great working place, a rich research envi-
ronment and wonderful colleagues.
Sincere thanks is also extended to Smålands Nation and the Anna
Maria Lundin Scholarship Committee for funding my research visit to
Israel in June 2012. Since all of the Israeli primary legal sources are
written in Hebrew, this visit was very important, making it possible
for me to clarify information about certain aspects of Israeli law that
were central to my project including the status of the child born fol-
lowing surrogacy contracts; parenthood and its transfer; birth registra-
tion; and the monitoring process of surrogacy contracts. I also gained
valuable insight into how religious factors play a large role in influ-
encing overall attitudes and policy in relation to surrogacy arrange-
ments.
Finally, I would like to acknowledge the support, love and encour-
agement I have received from my wonderful family: my husband
Bengt Lindell and our beautiful daughters Alexis, Gabriel, Tove and
Ida.

Jane Stoll
Uppsala, September 2013
Contents
Acknowledgements .............................................................................. 7
Abbreviations ..................................................................................... 17
Glossary ............................................................................................. 21
Prologue ............................................................................................. 27
1 Introduction .............................................................................. 31
1.1 Description of problem ........................................................ 31
1.1.1 Background ................................................................. 31
1.1.2 Purposes and objectives .............................................. 33
1.2 Materials and method ........................................................... 35
1.3 Limitations ........................................................................... 36
1.4 A child’s right to parents or a parent’s right to a child? ....... 38
1.5 Recent domestic developments 2013 ................................... 42
1.6 Some recent international developments ............................. 44
1.7 The use of the term “parent” ................................................ 46
1.8 Outline .................................................................................. 47
2 The problem with surrogacy arrangements: Some ethical
arguments ........................................................................................... 53
2.1 Introduction and purpose ..................................................... 53
2.2 Basis for Swedish surrogacy policy 1985–2012 .................. 55
2.3 Commodification arguments ................................................ 60
2.3.1 Introductory comments ............................................... 60
2.3.2 Children as a commodity – Baby selling .................... 61
2.3.3 Counter-arguments to children as a commodity ......... 62
2.3.4 Closing reflections: Children as commodity ............... 63
2.3.5 Surrogates as a commodity – body selling ................. 65
2.3.6 Counter-arguments to surrogates as a commodity ...... 66
2.3.7 Concluding remarks .................................................... 67
2.4 Exploitation arguments ........................................................ 68
2.5 Reproductive tourism arguments ......................................... 70
2.6 Harm to children arguments ................................................. 73
2.6.1 The main arguments .................................................... 74
2.6.2 Harm to children and the right to treatment ................ 76
2.6.3 Comparing the best interests of the child: adoption
and IVF .................................................................................... 77
2.6.4 Concluding remarks .................................................... 79
2.7 Legal arguments ................................................................... 80
2.7.1 The arguments............................................................. 80
2.7.2 Disputes over rights to the child ................................. 80
2.7.2.1 Assumption that surrogates will want to keep the
baby ......................................................................... 80
2.7.2.2 Who has a right to be the legal parent/s of the
child? ......................................................................... 82
2.7.3 Disputes over obligations to the child ......................... 83
2.7.4 Freedom of contract arguments .................................. 84
2.7.4.1 The arguments ................................................. 84
2.7.4.2 Reasons to permit freedom of contract with
surrogacy arrangements ....................................................... 84
2.7.4.3 Reasons to limit freedom of contract with
surrogacy arrangements ....................................................... 85
2.7.4.4 A possible alternative ...................................... 86
2.8 Social and medical arguments .............................................. 87
2.8.1 The arguments............................................................. 87
2.8.2 Surrogacy restricts the lifestyle of the surrogate ......... 87
2.8.3 Surrogacy poses medical risks for surrogate mother .. 88
2.9 Possible pitfalls of an altruistic model: A lesson from
Greece ........................................................................................... 89
2.10 If something is unethical, should it be illegal? ................ 92
2.11 Conclusion ....................................................................... 94
3 Surrogacy, parenthood and Swedish law .................................. 99
3.1 Introductory remarks ............................................................ 99
3.2 Background to Sweden´s current policy on surrogacy....... 100
3.2.1 Surrogacy in general ................................................. 100
3.2.1.1 The Insemination Investigation ..................... 100
3.2.1.2 Assumptions made about surrogacy and reasons
for not recommending regulation ....................................... 102
3.2.1.3 Support for Insemination Committee
assumptions in Government Bill on IVF ........................... 107