Legal parenthood

• Jurisprudence after treatment in Sweden/authorized clinic abroad
• Parenthood- or paternity confirmation
• Jurisprudence after home insemination/treatment at a clinic with an unknown donor
• Related adoption after home insemination
• Related adoption after treatment at a clinic with an unknown donor
• Related adoption, how does it work?

The Convention on the Rights of the Child states that children have the right to know who their parents are, and, and as a main rule, be cared for by them. In Sweden it’s furthermore viewed as a right to gain knowledge about your genetic heritage even in sperm- or egg donation where the donor is not to be established as a legal parent. It’s also taken into consideration that the child may have a psychological and/or medical interest in knowing its genetic heritage.

To be the legal parent of a child means that you are responsible for providing for the child and that the child has the right to inherit you. In Sweden a child can inherit at the most two legal parents. Most often, but not always, a legal parent is also the guardian.

As a guardian you have the right and obligation to make decisions regarding the child. For example issues about where the child should live, what pre-school the child should attend or matters to do with healthcare. You become a legal parent by being confirmed as a parent or by adopting a child. When it comes to confirmation you can be confirmed as a parent by giving birth to a child, through paternity presumption, by establishing parenthood in the family court or by a verdict in a court of law.

Legal parenthood is regulated in the parental code, a law that from January 1 2019 is updated with several new regulations. How parenthood is to be established for people who have changed their legal gender hasn’t been clear and has been subject to interpretations in some cases. From January 1 this is regulated by the law. Several more rules regarding parenthood after assisted fertilization (insemination or IVF treatment) with donated gem cells (eggs, sperm or embryo).

Something that previously was established by the court of law but that now is mentioned in the law is that people who have changed their legal gender have the right to parental designation. That means that you have the right to get the parental designation (mother or father, but not parent) registered in the population register so that it corresponds with your legal gender. A legal male thus has the right to be registered as a father and a legal female as a mother. A male who gives birth to a child is thus registered as the father. In the same way a female whose sperm has contributed to fertilization should be registered as mother according to the rules that apply for males. When a person changes legal gender and already is a parent the data in the population register should be changed both for the parent and the child.

When it comes to paternity presumption, i.e. that the male in a mixed-sex marriage is automatically seen as the father, a consequence of the changes in legislation is that presumption doesn’t apply to mixed-sex couples where one or both parties have changed their legal gender. When one of the parents have changed legal gender the parent who hasn’t given birth will be established as parent through confirmation or verdict. Several legal professionals mean that it’s discriminatory that paternity presumption isn’t used because of a change in legal gender.

Jurisprudence after assisted fertilization in Sweden or at a qualified clinic abroad

Assisted fertilization, i.e. insemination or IVF treatment, is a common way to parenthood for LGBTQ people. Family law after assisted fertilization with donated sperm is different depending on if you are single or if you are two parents. It also differs depending on where the assisted fertilization has taken place (at home or at a clinic). If the treatment is carried out at a clinic the rules also differ depending on if the donor’s identity is to be made known to the child or not.

In Sweden, same-sex female couples have been able to access assisted fertilization with donated sperm at a clinic since 2005. After the demand of sterilization for trans people who have changed their legal gender was abolished 2013, men with a trans background have had access to assisted fertilization at a clinic in Sweden (provided that they are single or in a relationship). Since 2016 single women and men with a trans background also have the right to access assisted fertilization with donated sperm at a clinic in Sweden.

In order to access assisted fertilization at a clinic in Sweden the two people (if you are two) who want to become parents together, must live in a relationship as a couple or married. It’s thus not possible to access assisted fertilization at a clinic in Sweden based on one or more friendships or if you are more than two people who want to become parents together.

As of January 1, 2019, assisted fertilization with donated gem cells only, what is sometimes called embryo donation and that entails treatment with both donated eggs and donated sperm or donated fertilized eggs (embryos), is available in Sweden. The stipulation that the egg should should be the carriers own eggs, if donated sperm is used in the treatment, is thus abolished. To receive an egg from a partner counts as egg donation in the eyes of the law, even though the egg comes from the couple. Who are eligible for assisted fertilization with donated gem cells only is up to the caregiver to decide, based on the principles in the healthcare act.

Because of the changes in the legislation as of January 1 2019 the differences in the legislation between same- and and mixed-sex couples are evened out. One difference is however the paternity presumption, i.e. that the male in a mixed-sex marriage where nobody has changed their legal gender automatically is viewed as the father. A paternity presumption that works in the same way for same-sex married couples or married mixed-sex couples where one or both parties have changed legal gender thus doesn’t exist. A state investigation that was presented in 2018 does however suggest that such a parenthood presumption should be instated in 2021. In order for that suggestion to become reality the issue must be taken to the government and be voted on in parliament.

A change for same-sex female couples after the change in legislation is that the proceedings in the establishment of parenthood become the same after treatment at a Swedish clinic and a clinic abroad, given that the clinic abroad is recognized and that the child will have the right to information about the donor. The possibility of establishing parenthood is thereby broadened for same-sex couples. Before, related adoption has been the only possibility of legal parenthood for the parent who doesn’t give birth after treatment at a clinic abroad, even when the donor’s identity could become known to the child. For mixed-sex couples the changes in the legislation mean that the possibility to become established as legal parent after assisted fertilization with donated sperm is limited, compared to what it was like before. The criteria that must be fulfilled in order to become established as a legal parent through confirmation, after assisted fertilization with donated sperm, is thus as of January 1 the same for same- and mixed-sex couples.

Consent to treatment

When a couple undergoes assisted fertilization with donated gem cells (sperm, eggs or embryo) at a clinic in Sweden, the one who is not going to carry the child signs a so called “consent to treatment”. This is done at the clinic before the treatment starts. This consent then acts as a legal insurance that the child has the right to have this parent established as a legal parent after the child is born, if it’s likely that the child was conceived through the treatment. The partner should also sign a “consent to treatment” at a clinic abroad to facilitate the establishment of parenthood after treatment.

Parenthood – or paternity confirmation 

For legally same-sex female couples who become parents through assisted fertilization with donated sperm at a clinic in Sweden the parenthood of the person not giving birth to the child must be established. This is called a parenthood confirmation and takes place after the child is born. As of January 1 2019 the same procedure applies for parenthood confirmation after assisted fertilization at a clinic abroad, provided that the clinic is authorized and that the child will have the right to obtain information about the donor. What legally constitutes an authorized clinic is however not defined in the legal text.

The parenthood confirmation is signed during a meeting with the social services (the family court). You are summoned after the child is born. It’s important that you bring your “consent to treatment” from the clinic to this meeting. Note that you as a legal same-sex female couple have to do this parenthood confirmation regardless of if you’re married or not. This is because we don’t have a gender neutral parenthood presumption in marriages in Sweden at the present time, but only a paternity presumption in mixed-sex couples where no party has changed their legal gender. If the female that hasn’t given birth doesn’t confirm parenthood she can be established as parent in a court of law.

When two legal females become legal parents to a child in this way the one who has given birth to the child is registered as the mother, and the other female as a parent in the population records.

Even amongst unmarried different sex couples (where nobody has changed their legal gender) paternity must be confirmed. Here, the same procedure applies as for same-sex female couples, but it is then called paternity confirmation. If the couple has undergone assisted fertilization with donated sperm the same rules apply as of January 1 2019 as for same-sex female couple, i.e. that it’s possible to be established as father through paternity confirmation if the treatment has been carried out at a Swedish clinic or at an authorized clinic abroad and the child will have the right to get information about the donor.

In couples where one or both have changed legal gender the same rules and criteria as above are used to confirm maternity/paternity after assisted fertilization with donated sperm. If you have undergone the treatment at a Swedish clinic or authorized clinic abroad and the child has the right to obtain information about the donor, a legal male should be offered to confirm paternity and a legal woman to confirm maternity. The legislation doesn’t allow, however, that a person that has changed legal gender is listed as parent in the population register. If the person not giving birth doesn’t confirm paternity or maternity ze can instead be confirmed as a father or mother by a court of law. Paternity presumption never applies to married mixed-sex couples where one or both have changed their legal gender. Parenthood must be confirmed even within married couples where one or both have changed their legal gender.

Paternity presumption

For mixed-sex couples (where no one has changed their legal gender) that have had assisted fertilization with donated gem cells there is no paternity confirmation, the parenthood is confirmed through paternity presumption. Swedish legislation presumes that children born within a mixed-sex marriage always are the couple’s common children even when the child has been conceived though egg-, sperm- or embryo donation. A paternity presumption can however be overturned if the male in the marriage isn’t genetically linked to the child or has consented to treatment at a Swedish clinic or an authorized clinic abroad where the donor can be made known to the child.

Singels

If you have a child as a single parent you will be summoned to the social services (family court) for a paternity- or parenthood investigation. If the child has been conceived through assisted fertilization at a clinic in Sweden or at an authorized clinic abroad with donated sperm from a donor who can become known to the child, paternity or parenthood should not be confirmed. The paternity investigation is cancelled and you are the child’s only legal parent. Bring the certificate or receipt from the clinic to this meeting, it acts as a confirmation that you have become pregnant by treatment there.

Jurisprudence after home insemination or assisted fertilization at a clinic with an unknown donor

Many LGBTQ people choose to travel to other countries to undergo assisted fertilization. The reasons vary, for example that you want to escape the waiting time to access publicly financed fertility care in Sweden, or that the rules in Sweden prevent you from accessing assisted fertilization. Fertility treatment at a clinic abroad is always financed by you yourself. As of January 1 2019 the law is changed so that parenthood after assisted fertilization at a clinic abroad will be confirmed in the same way as fertilization at a clinic in Sweden, if the clinic is authorized and the donor can become known to the child. The text below thus applies if the clinic is not authorized and/or if the donor’s identity can’t be made known to the child.

Couples

As of January 1 2019 the same rules apply for same- and mixed-sex couples who do home insemination (with donated sperm) or assisted fertilization with donated sperm at an unauthorized clinic abroad and/or have used sperm from a donor who doesn’t want to become known to the child. Previously, for mixed-sex couples, the rule was that the one who didn’t carry the child could be confirmed as parent (father) by orally confirming that they had consented to the treatment.

If you have undergone assisted fertilization with donated sperm at an unauthorized clinic abroad and/or have used sperm from a donor that can’t be known to the child, only the one carrying the child becomes the legal parent. In order to adopt you must live together or be married. The process takes 6-10 months and can only be started after the child is born and has a social security number. Most related adoptions are successful, but it’s good to know that the time of the process is legally uncertain for all involved, not least for the child who risks losing one of its intended parents if a conflict should arise. If the one who has carried the child for example changes their mind and don’t want to become a parent with their partner after the child is born the other parent has no legal right to adopt the child. The same thing is true if the one who hasn’t carried the child changes their mind and no longer wants to adopt the child. Before a related adoption it’s good to be prepared and to know what the process entails. Read more about related adoption further on.

Singles

If you have a child as a single person you will be summoned to the social services (family court) for a paternity- or parental investigation. This happens after the child is born and has gotten a social security number. If the child has been conceived through assisted fertilization at a clinic abroad with donated sperm from a donor who cannot be made known to the child, the paternity investigation is most likely cancelled. Bring the receipt or certificate from the clinic to this meeting, it acts as a confirmation that you became pregnant there. If information about the donor surfaces at a later date the paternity investigation can be re-opened, right up until the donor’s death.

Related adoption, jurisprudence

Related adoption means that you adopt a child that you already have a relationship with. This is different from adoption of a child you have no relationship with, which today is oftentimes international adoption. To be able to adopt a child you have a relationship with and become the legal parent together with someone you need to live together or be married to each other. In Sweden a child can have at the most two legal parents. If a child already has two legal parents one of them must renounce their legal parenthood by consenting to the adoption.

Related adoption after home insemination 

If you’ve gotten pregnant through a home insemination with a sperm donor, there are a few things to think about:

• After the child is born there is a paternity investigation and most social welfare boards state that an adoption process can be started only after the paternity investigation is finished.
• If the donor’s identity becomes known during the investigation, this person will be registered as the father of the child. The donor will be listed as the father until someone else adopts the child. It’s thus not possible for the donor to renounce parenthood if there isn’t another person who intends to adopt the child. It may facilitate the proceedings if there are papers that state that the donor intends to consent to an adoption, but such an agreement isn’t legally binding. The one who carried the child and the one who is to adopt need to give their consent after the child is born. A donor that’s been confirmed as father only needs to give formal consent if they are the guardian, but the social services should always inquire about the donor’s will. If they don’t consent to the adoption the court won’t normally approve the adoption.
• If you don’t know who the donor is, or if you can’t or don’t want to disclose the donor’s identity the paternity investigation can be closed. It can however be re-opened again, if new information surfaces, basically until the donor dies or the child has been adopted. If there is a person who intends to adopt the child the paternity investigation is usually closed even in those cases where the donor’s identity can’t be traced. When an adoption has been carried out there will be no legal bonds between the child and the donor, and the paternity investigation won’t be re-opened.

Paternity investigation after home insemination

After an insemination at home with donated sperm the social services (family court) will as far as possible try and find out the donor’s identity. In those cases where the donor’s identity is known and there’s someone who is going to adopt the child, the quickest way is for the donor to confirm paternity and then consent to the adoption in favor of the person who is going to adopt the child. By the donor confirming paternity the paternity investigation is finished and the adoption process can be quicker. Even in those cases where the donor’s identity is unknown and there’s someone who wants to adopt the child, the paternity investigation can be closed. It can however take longer than if there’s a known donor who confirms paternity. A paternity investigation should not take more than a year. If you give birth to a child and don’t know who the genetic father/donor is and there isn’t someone who is going to adopt the child, the paternity investigation can be re-opened in case new information surfaces, basically until the donor’s death. A paternity investigation is only closed if it is deemed impossible for the family court to get the information needed to judge the paternity or if there’s a reason to assume that a continued investigation would mean harm to the child’s or parent’s mental health.

The background to the law

In Sweden the law is written in such a way that two legal parents to a child always should be confirmed, if possible. The paternity investigation isn’t normally closed until the genetic father/donor is confirmed. This is partly based on a feminist viewpoint that means that when someone has fathered a child with their sperm they shouldn’t be able to escape their legal parental responsibilities. Something that historically has been a fact for involuntarily single women and that today’s legislation takes into account.

Related adoption after assisted fertilization at a clinic with an unknown donor 

If a couple undergoes assisted fertilization at an unauthorized clinic abroad and/or if the donor’s identity cannot be made known to the child, only the person who has carried the child becomes the legal parent. The one that hasn’t given birth has to adopt the child.

For mixed-sex couples (where no one has changed their legal gender) paternity is confirmed automatically though paternity presumption. Swedish legislation thus presumes that the children born in a mixed-sex relationship (where no one has changed legal gender) always are the couple’s common children. If the child has been conceived through assisted fertilization at an unauthorized clinic abroad and/or if the donor’s identity cannot become known to the child, the presumption can be lifted, until such a time as when the donor dies. To make sure, the parents can lift the presumption immediately and then let the man adopt the child. This is a legally more certain situation than a paternity presumption that can be lifted. The time between the lifting of the paternity and the finalization of the adoption is however legally uncertain.

The parents need to live together or be married in order for the adoption to go through. The process cannot be started until the child is born and has a social security number. Most related adoptions are approved, but it’s good to know that the time of the process is legally uncertain in different ways for everybody involved, not least for the child who risks losing one of its intended parents should a conflict arise. If the one who has carried the child should change their mind and not want to be a parent with the partner after the child is born, the other parent has no legal right to adopt the child. The same thing is true if the one who hasn’t carried the child should change their mind and not want to adopt, then the person who has carried the child cannot demand that the other should adopt the child. Before a related adoption it’s good to be prepared and to know what the process entails. To facilitate the paternity investigation it’s important to save receipts from the clinic where the assisted fertilization took place. Read more about related adoption below.

Paternity investigation after assisted fertilization at a clinic abroad with an unknown donor

When a couple or a single person conceive a child through assisted fertilization at a clinic abroad with sperm from a donor who cannot become known to the child the social services (family court) start a paternity investigation. The purpose is to find out who is the genetic father/donor to the child and to confirm him as the legal father.

After treatment at a clinic abroad with sperm from a donor who cannot be made known to the child the paternity investigation is in most cases closed, given that it can be proven that the child was conceived through the treatment. The safest way of doing this is by saving the receipt from the clinic where the treatment took place and to bring it when you are summoned to the social services (family court) for a paternity investigation.

Related adoption, investigation

Most adoptions within rainbow families are so called related adoptions. Related adoption means that a person adopts a child they already have a relationship with. The process is the same as when a step parent adopts a partner’s child. For LGBTQ people a related adoption is most often about adopting a child you intended to be parenting from the start. Within rainbow families in many situations only one of the two intended parents are confirmed legally. Then the partner not giving birth has to adopt in order to become the legal parent of the child/children. After the adoption both of the parents become legal parents to the child. It’s the district court that decides if a related adoption should be  approved or not, and it’s the social services (family court) that does an investigation to judge if the adoption is in favor of the child. In most cases the social services will start the adoption investigation only after the paternity investigation is closed. When the adoption investigation is ready the social services makes a statement to the district court that makes a decision about related adoption.

How does a related adoption work?

• Paternity investigation. Most social welfare boards (family courts) believe that an adoption process cannot be started until the paternity investigation is finished. Contact the social welfare board where you live. You will find the contact information on your municipality’s home page. If it’s hard to find contact information, call the switchboard and ask to speak to the person that works with issues about parenthood, paternity and adoption.
• Application. An application about adoption is sent to the nearest district court. If you don’t know where the nearest district court is you can do a search by postal code from Swedish courts’ website. The application is made by filling out a form or writing an application in the form of a letter. The form to fill out is called ”Tillstånd att antaga adoptivbarn” and is available at the Family Law and Parental Support Authority’s web page. Birth certificate for the applicant and the child, a copy of the social services’ decision that the paternity investigation is closed and consent from the child’s guardian are sent as annexes to the application. Birth certificates are ordered at the Tax Agency’s web site, which has a list of different birth certificates. Choose certificate for district court. Choose the birth certificate in the list for adoption (for you who are to adopt) and adoptive child (the child you are to adopt). The consent from the child’s guardian can be in the form of a letter.
• Application fee. Pay the application fee through a payment service at Swedish courts’ website. The fee for adoption cases is today 900 SEK.
• Investigation. When the application is completed and the fee paid the district court tasks the social services (family court) with doing an investigation and making a statement.
• Decision. The district court makes a final decision based on the social welfare board’s statement.

What’s included in the adoption investigation and how long does it take?

What’s included can vary from case to case. But an investigation usually means an interview with the person who has carried the child and the person that’s going to adopt, a home visit and possible conversations with other people surrounding the child and the parents. If the child is old enough, its will should be investigated. An investigation takes anything from a couple of months up to a year. Normally related adoption takes 6-10 months.

The Swedish National Board of Health and Welfare has developed a manual for the social workers within the family court that do adoption investigations. It’s called “Handbok för socialtjänstens handläggning av internationella och nationella adoptioner” and can be downloaded from the Swedish National board of Health and Welfare’s website or MFoF’s website. In one chapter of the manual the there’s a description of the investigation in relation to same-sex couples. It’s stated that there are no rules for what the testimony should include and that there is some unclarity regarding what steps should be included in the investigation. In practice, this leads to different interpretations being made by different social workers, something that many rainbow families attest to. Different social workers perform a different number of steps in the investigation. Some ask for documents and certificates that others do not and there are different questions being asked in the interviews.

Of course there has to be variations in the investigation since questions may arise along the way that the social worker wants to explore further. But what’s perceived as problematic or violating is that unnecessary questions that wouldn’t be asked to a mixed-sex couple are asked or questions of a very private character that can’t be seen as relevant to the investigation are asked. If you feel that you have been treated in a homophobic, transphobic, demeaning and/or violating way in the investigation for related adoption you should contact the Health and Social Care Inspectorate (IVO). IVO supervises operations in the social services and healthcare, and healthcare staff.