Surrogatmoderskap: en analys av den förbjudna formen av assisterad befruktning

Sammanfattning: The theme of this essay is surrogate motherhood. This is the practice whereby one woman carries a child for another woman. The other woman and her partner are called the commissioning couple. When the surrogate mother has given birth, the child is handed over to the commissioning couple. The commissioning couple may be the genetic parents of the child, or the surrogate mother may have contributed by donating one of her eggs i.e. genetically she is the mother. Surrogacy is a form of assisted reproduction which is not legalized in Sweden today. In taking this standpoint, the Swedish legislator has given a number of various reasons; one of them being that the method is unacceptable from an ethical point of view. The primary purpose of this essay is to describe and to analyse the motives given by the legislator as to why this form of assisted reproduction is not desirable in the Swedish judicial system. To best achieve this goal, the report initiates with a brief survey of the methods of assisted reproduction that are currently allowed by Swedish law. At the moment surrogacy is not explicitly prohibited by Swedish law, which results in practise of the method. This may lead to legal implications for all parties involved in a surrogacy agreement. The most prominent legal problem that may arise concerns the question of the legal parenthood. According to the legal presumption mater est quam gestatio demonstrat, the surrogate mother is considered to be the legal mother of the child. To be able to obtain status as legal parents the commissioning couple has to circumvent the law, which of course may lead to unexpected situations and unwanted results, for the commissioning couple as well as for the surrogate mother. Case NJA 2006 s. 505 gave rise to the only decision from the Swedish Supreme Court on surrogacy and illustrates the difficulties that may arise. In this case, the court did not allow the woman from the commissioning couple, who was also the biological (in Swedish; genetical) mother of the child, to adopt the child and she was thus given no chance to obtain custody of the child. The ruling of this case is thoroughly scrutinized in this essay. Furthermore this essay includes a comparative view. The English and the Greek legislation on the matter are described. Surrogacy is permitted in both countries, but regulated in two different ways. To conclude, the motives of the Swedish legislator are being analyzed. I will discuss whether the position taken by the legislator is reasonable in relation to the consequences that may occur when, as a matter of fact, babies are born in Sweden through surrogacy arrangements. Based on the comparison with other legal systems I argue that the issue is not regulated to a satisfactory extent by Swedish law today.