Legal parenthood after assisted fertilization

Family law after assisted fertilization is different depending on if you are single or if you are two or more parents. It's also different depending on if the assisted fertilization has been done at home, at a clinic in Sweden or a clinic abroad. Here we have gathered information about legal parenthood after an assisted fertilization.

In Sweden same-sex lesbian couples have had access to assisted fertilization with donated sperm at clinics since 2005. After the sterilization demand for transsexuals was abolished in 2013, men with a transsexual background have had access to assisted fertilization at clinics in Sweden (if they are single or are living in a relationship). Since 2016 single women have also received the right to assisted fertilization with donated sperm at clinics in Sweden. In order to do 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. It’s not possible to get help with assisted fertilization if you have a relationship as friends or if you’re more than two people who want to become parents together

Consent to treatment

When a couple gets assisted fertilization with donated gem cells (sperm or eggs) at a clinic in Sweden, the one who isn’t 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 works as a legal assurance that the one not carrying the child has the right to become legal parent to the child after it’s born.

Parental confirmation for same-sex couples

For same-sex couples with the same legal gender who become parents through assisted fertilization at a clinic in Sweden, the parenthood of the one who hasn’t carried the child has to be confirmed. This is called a parenthood confirmation and happens when the child is born. You will then be summoned to a meeting at the social services (family law) where you get to sign the parental confirmation. It’s important that you bring your “consent to treatment” from the clinic to this meeting. You as a same-sex couple have to do this parental confirmation whether you are married or not. This is because we today don’t have a gender-neutral parental presumption in marriages in Sweden, but only a paternal presumption in marriages for opposite sex couples with different legal genders. When two females with a legal female gender become legal parents to a child one of them will be registered as the mother, the one who gives birth, and the other one as the parent. This is because the legislation is written in this way.

Paternal confirmation or -presumption for opposite sex couples

For opposite sex couples with opposite legal genders who aren’t married and have done assisted fertilization at a clinic in Sweden with donated sperm or eggs the procedure is the same as for same-sex couples with the same legal gender, but then it’s called a paternity confirmation. For opposite sex couples with opposite legal genders who are married and have done assisted fertilization at a clinic in Sweden with donated sperm or eggs, there is no paternity confirmation, but the paternity is established automatically through paternity presumption. Swedish legislation is thus based on the presumption that children born within an opposite sex marriage always is the couple’s common child, even in those cases where the child has been conceived through sperm- or egg donation at a clinic in Sweden.

Legalities after assisted fertilization abroad

Many LGBTQ people choose to travel to other countries to have assisted fertilization. The reasons can be many, for example to avoid waiting times to get access to publically financed fertility treatment in Sweden, or that the rules in Sweden make it impossible to get access to assisted fertilization. People who want to donate eggs within a couple or couples where both are infertile cannot get help with assisted fertilization at a clinic in Sweden at present. Fertility treatments at a clinic abroad is always financed by you.

Same-sex couples

If you’re a couple where both are women with a female legal gender and you undergo assisted fertilization with donated sperm abroad, only the one that’s carried the child becomes the legal parent. The one who didn’t carry the child must adopt the child. In order to be able to adopt you must be married to each other. The process takes about 6-10 months and can only be started once the child is born and has a social security number. Most adoptions go well, but it’s good to know that the time that the process in on-going is legally uncertain in different ways for all involved, not least for the child that risks losing one of it’s presumptive parents if a conflict was to arise. If the one who carried the child changes their mind about becoming 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 parent who didn’t carry the child no longer wants to adopt the child. The one who carried the child can’t demand that the other should adopt the child. Read more about related adoption here.

Singles

If you get pregnant as a single person through assisted fertilization with donated sperm at a clinic abroad you will be summoned to the social services (family law) to do a paternity investigation. This happens after the child is born and has a social security number. If it becomes obvious that the donor (father) cannot be found, since it’s deemed likely that the child has been conceived through assisted fertilization at a clinic abroad, the paternity investigation is closed. Bring a receipt or document from the clinic to this meeting, that serves as confirmation that the pregnancy has been started through assisted fertilization at a clinic abroad. If there is information about the donor at a later stage the paternity investigation can be re-opened, basically until the donor has died.

Opposite-sex couples

If you are a opposite-sex couple with opposite legal genders and have done assisted fertilization at a clinic abroad with donated sperm or eggs, the one that hasn’t carried the child is determined as the parent (father) by orally confirming in the paternity investigation that he has consented to the treatment. No related adoption is therefore needed for opposite-sex couples who are unmarried. For married opposite-sex couples with opposite legal genders who have done assisted fertilization at a clinic abroad with donated sperm or eggs the paternity is automatically determined through paternity presumption. The paternity shouldn’t be revoked even if the father hasn’t provided the sperm. Swedish legislation is therefore based on the notion that the children that are born within an opposite-sex relationships always are the couple’s common child, even in the cases when the child has been conceived through egg- and/or sperm donation abroad.

Parental adoption, legalities

Parental adoption means, unlike national or international adoption, to adopt a child you already have a relationship with. To be able to parentally adopt a child to become the legal parent together with someone, you need to be married to each other. In Sweden a child can have at most two legal parents. If a child already has two legal parents one of them needs to relinquish their legal parenthood by consenting to the adoption.

Parental adoption after insemination at home

If you have become pregnant through home insemination with a sperm donor there are some things to think about:

  • After the child is born there is a paternity investigation and only when it’s finished a process of paternal adoption can be started.
  • If the paternity investigation reveals who donated the sperm that person will be registered as the father. The donor has to actively renounce parenthood in favour of someone else by consenting to adoption of the child.
  • It’s thus not possible for the donor to renounce parenthood if there is no other person who wants to adopt the child.
  • It can make things easier if there are papers written where the donor states that he will consent to an adoption, but such an agreement isn’t legally binding. The one who has carried the child and the one about to adopt the child need to give their consent after the child has been born. A donor that has been established as the father only has to give a formal consent if he is a caregiver, but the social services should always inquire into the donor’s wishes.
  • If you don’t know who the donor is or don’t want to disclose his name, the paternity investigation can be stopped. It can however be re-opened again, if information surfaces later, as long as the donor is alive. If there is a person that intends to adopt the child the paternity investigation is usually terminated even in those cases where the donor’s identity can’t be traced. When an adoption is completed there will be no legal connections between the child and the donor and the paternity investigation won’t be opened again.

Related adoption after assisted fertilization at a clinic abroad, same-sex couples

If two women with female legal genders do assisted fertilization at a clinic in another country that Sweden only the one who has carried the child becomes the legal parent. The one who didn’t carry the child must adopt the child after it’s born. The parents must be married to each other in order for a related adoption to be possible. The process cannot be started until the child is born and has a social security number. Most adoptions go well, but it’s good to know that the during the time that the process in on-going is legally uncertain in different ways for all involved, not least for the child that risks losing one of it’s presumptive parents if a conflict was to arise. If the one who carried the child changes their mind about becoming a parent with the partner after the child is born the other parent has no legal right to adopt the child. The same thing happens if the parent who didn’t carry the child no longer wants to adopt the child. The one who carried the child can’t demand that the other should adopt the child. It’s therefore good, if you choose this option, to write down your agreements already during pregnancy. 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 here.

Related adoption after assisted fertilization at a clinic abroad, opposite-sex couples

If an opposite-sex couple with opposite legal genders who aren’t married have done assisted fertilization at a clinic abroad with donated sperm and/or -eggs, the person who didn’t carry the child as a parent (father) is determined as parent through, in the paternity investigation, orally stating that he has consented to the treatment. Parental adoption thus is not needed for unmarried same-sex couples. For opposite-sex couples with opposite legal genders who have done assisted fertilization abroad with donated sperm or eggs the parenthood is determined automatically by paternity presumption. Swedish legislation is thus based on the presumption that the children born in an opposite sex marriage always are the couple’s common children, even in those cases where the child was conceived through egg- and/or sperm donation abroad.

Parental investigation

When a same-sex couple with two women a with legal female or a single person gives birth to a child after assisted fertilization at a clinic abroad or after home insemination, there is a paternity investigation. The aim is to find out who is the father/donor of the child. The reason is that in Sweden is seen as a right to know your genetic origin. It’s also believed that the child can have a psychological and/or medical interest in knowing their genetic origin.

Paternity investigation after assisted fertilization abroad

After an assisted fertilization at a clinic abroad the paternity investigation is most often terminated, if you can prove that the child has been conceived by treatment abroad. The surest way of doing this is by saving the receipt from the clinic where the treatment has taken place and bringing it when you’re summoned to the social services (family law) for the paternity investigation.

Paternity investigation after home insemination

After an insemination at home the social services (family law) will as far as possible try and find out the donor’s identity. In the cases the donor’s identity is known and there’s someone else who is going to adopt the child, it’s easiest that the donor confirms the paternity to then consent to adoption in favour of the person who is to adopt the child. By the donor confirming the paternity, the paternity investigation is closed and it’s possible to start an adoption process. 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, so that an adoption is possible. It can take longer than if there’s a known donor who admits paternity. The paternity investigation should be carried out within a year. If you give birth and don’t know who the father/donor is and there’s no one who is to adopt, the paternity investigation can be opened again if new information arises at a later stage, up until the donor has died. A paternity investigation is only closed if it’s impossible for the family law to get the information needed to judge the paternity or if there’s reason to presume that a continued investigation would pose a threat to the child or the existing parent’s mental health.

The background of the legislation

In Sweden the law is written in such a way that two legal parents of a child always, if possible, should be determined. The paternity investigation usually isn’t closed if the identity of the father/donor can’t be determined. This is based on a feminist view that if a person has fathered a child with his sperm, he shouldn’t be able to get out of his legal parental responsibilities. Something that historically has been a fact for many involuntarily single parents and that today’s legislation still abides by.

Related adoption, assessment

Most adoptions within rainbow families/LGBTQ families are so called related adoptions. Related adoption means that a person adopts a child they already have a relationship with. For LGBTQ people only one of two intended parents are usually legally recognized. Then other intended parent can then adopt their partner’s/co-parent’s child. This partner/co-parent often lives close to, and already has, a connection to the child. After a related adoption both parents become legal parents to the child/children. It’s the district court that makes a decision about if a related adoption should be approved or not, and it’s the social services (family law) that undertakes an investigation to make an assessment if the related adoption is beneficial to the child. In order for an investigation to begin the paternity investigation must be closed. When the investigation is ready the social services give a report to the district court that makes a decision about the related adoption.

How does a related adoption work?

  • Paternity investigation. In order for an application of adoption to be made the paternity investigation must be closed. This is done by the social services (family law). Contact the social services where you live. You will find contact information at your municipality’s/district’s website. If it’s hard to find contact information, call the switchboard and ask to speak to the one working with parenthood, paternity and adoption.
  • Application. An application about adoption is sent to the nearest district court. The application is done by filling out a form or writing an application in the form of a letter. Birth certificates for the applicant and the child, a copy of the social services’ decision that the paternity investigation is closed and consent from the one of you that is the child’s caregiver should be attached. Birth certificates can be ordered at the Swedish Tax Agency’s website, where there’s a list of different birth certificates. Find the birth certificate that applies to adoption (the one adopting) and the adoptive child. Consent from the child’s caregiver can be written as a letter. You find the form ”Tillstånd att antaga adoptivbarn” (Permission to accept adoptive child) here.
  • Application fee. Pay the application fee through a payment service at Sveriges domstolar’s website. The fee for adoption cases is 900 SEK.
  • Investigation. When the application is complete and the fee has been paid the district court sends a request to the social services (family law) about doing an investigation and to compile a claim.
  • Consent. Decision about consent is made by the social welfare board based on the papers in the investigation.
  • Decision. The district court makes the final decision based on the social welfare board’s statement.

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

What’s included in the investigation can vary from case to case. But an investigation usually consists of an interview with the person who carried the child and with the person who is to adopt the child, a home visit and possibly interviews with other people around the child and the parents. If the child is old enough, the child’s wishes should also be investigated. If a donor or surrogate is established as a parent the social services should always investigate their wishes. An investigation can take anything from a couple of months to a year. Most commonly a related adoption takes 6-10 months.

The National Board of Health and Welfare has produced a handbook for the caseworkers in family law who work with adoption investigations. It’s called “Handbok för socialtjänstens handläggning av internationella och nationella adoptioner” and can be downloaded at the National Board of Health and Welfare’s website . In one chapter of the handbook investigations regarding related adoption of a child born in a same-sex relationship are described. It says that there is no regulation for what the statement should contain and there are some unclarities surrounding what steps should be taken in the investigation. In practice this leads to that different interpretations are made by different caseworkers, something that many rainbow families confirm. Different caseworkers go through a different number of steps in the investigation. Some request documents and certificates that haven’t been requested by others and there are differing questions during the interviews.

Of course there has to be variations in the investigation since questions can arise along the way that the caseworker wants to discuss in more detail. But what is perceived as problematic or violating is primarily that questions are sometimes made to a same-sex couple that aren’t made to opposite-sex couples and questions of a private nature that cannot be seen as relevant to the investigation are sometimes made. If you feel that you are treated in a homophobic, transphobic, demeaning or violating way you can turn to Social Care Inspectorate (IVO). IVO oversees organisations in the social service area and healthcare, as well as healthcare staff.