Föräldraskapsregleringen efter en surrogatprocess utomlands – Är den förenlig med barnets rätt till privat- och familjeliv?

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

Sammanfattning: Since there is no possibility for surrogacy arrangements within Swedish health care, couples and singles turn abroad to hire a surrogate mother. Upon completing the process they aim to be recognized as legal parents to the child or the children in Sweden. Sweden has taken a negative approach to introducing surrogacy in Sweden and do not want to facilitate individuals going abroad. In the cases where one of the intended parents is the genetic father there is a clear legal way for both the intended parents to be recognized as legal parents. However, when there is no Swedish, genetic father the possibility to be recognized as a legal parent is close to non–existent. The Swedish regulation results in an insecure legal situation, not only for the intended parents, but also for the child. In this essay I have examined whether the current regulation is compatible with the child’s right to private– and family life according to art. 8 European convention on human rights. When a Swedish, genetic father exists, he can be recognized as the father of the child, apply for sole custody and then give his consent for his spouse to adopt the child. That way the intended parents will also be the legal parents. These legal processes can take time and in the meantime, the child is an insecure legal situation. The interest that the Swedish regulation aims to protect are, however, of great importance and therefore the regulation is largely compatible with the child’s right to both private– and family life. What can be questioned is mainly the genetic father’s possibility to retract his consent for adoption late in the process with the consequence that the child only has one custodian. In the cases where there is no Swedish, genetic father there is no corresponding legal way and the possibility to adopt must be considered highly uncertain. The obligations Sweden has according to the European convention on human rights are however very limited. The European court of human rights places great emphasis on the genetic links and like in the case described above there are interests of great importance to consider. There is no existence of family life and in many cases it is unsure whether the children are covered by Sweden’s obligations according to the convention. Even if the child’s private life in some cases is included, in most cases there is probably no prohibited intervention.

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