Kringgåendeläran vid gränsöverskridande surrogatarrangemang - En analys av hur kringgåendeläran kan motverka att svensk lag kringgås

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The prevalence of surrogacy in Sweden is increasing, even though Sweden's attitude to surrogacy always has been dismissive. The legal regulation regarding assisted reproduction and determination of parenthood is largely aimed at counteracting the existence of surrogacy. To be able to use a surrogacy mother, Swedish citizens therefore turn abroad, where the method is permitted and where they can be determined as the child's legal parents. Their hope is then to make legal parenthood valid in Sweden. The procedure can be seen as an abuse of the international private law regulation, which results in an evasion of Swedish law. The evasion of law doctrine aims to tackle such evasion. The thesis aims to investigate what opportunities are given to Swedish courts and authorities, based on a reference to the evasion of law doctrine, to prevent Swedish law from being evaded in cases where Swedish citizens undergo surrogate arrangements abroad. The thesis concludes that a reference to the evasion of law doctrine in cases of surrogacy abroad is possible according to Swedish law. A reference to the doctrine would make it possible to deviate from the applicable rules of private international law, by refusing to recognize a foreign decision on the determination of parenthood when evasion of law has been observed. However, a reference to evasion of law doctrine must be in accordance with Article 8 of the European Convention. It is noted that the convention severely limits the possibilities of referring to the evasion of law doctrine and thereby counteracting evasion of Swedish legislation. As it stands today, an international instrument on surrogacy is the solution that best meets the interests of both Sweden and the children, as an international instrument can ensure that at least some of the interests that Sweden's countermeasures of surrogacy aim to protect can be guaranteed.

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