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Denmark Threatens To Deport Surrogate-Born Children

Last week saw a positive ruling come out of the United Kingdom courts concerning parentage recognition of three children born by surrogacy in the United States to two European dads. But prior to reaching the happy legal outcome, the family went through rough times, including in their home country of Denmark. The Scandinavian kingdom had threatened to deport all of their children! Not to mention the fact that they faced the added obstacles of their surrogacy agency going out of business due to an embezzlement scandal and running up against the ticking legal time clock of Brexit.
Family Formation For A European Gay Couple
The two dads are known as TT and RR in the U.K. decision, but we’ll call them British Dad and Danish Dad. Both are successful businessmen. British Dad is a British citizen, of course, and Danish Dad is a Danish citizen. The couple met in Spain in 2009, and British Dad moved to Denmark to be with Danish Dad. The couple married in 2015. In 2016, the couple began exploring their options to grow their family. Unfortunately, due to Danish Dad’s age — in his mid-50s — adoption was not a permitted option in Denmark. The couple turned to surrogacy.
They worked through a U.S. surrogacy agency, and were matched with a surrogate in Oregon, which successfully resulted in the birth of twins in 2017. Their legal process from there seemed to go smoothly. The dads were declared to be the legal parents of their twins under Oregon law and, because the children were born in the U.S., the children were issued U.S. passports. Upon the family’s return to Denmark, the Danish authorities provided the twins with Danish passports and confirmed their Danish citizenship. So far, so good.
When the twins were about 12 months old, the dads decided to have one more child. They again went through surrogacy in the United States. However, since the birth of their twins, their previous surrogacy agency had gone out of business after facing an embezzlement scandal from an employee. Working with another agency and matched with a surrogate in California, all seemed to be going well when their third child was born in 2019.
It All Goes Rotten In Denmark
The family returned home with their newborn third child and sought to register her as a Danish citizen and obtain a Danish passport for her, just as they had done with her older siblings. That’s when things fell apart. The dads were told that their twins had been registered in error and that it was not possible to confer Danish citizenship to children born through such circumstances. Under Danish law, only the genetic father — here British Dad — and the surrogate(!) were recognized as legal parents of the children.
On December 16, 2020, the dads were called to a meeting with the Danish authorities to discuss deportation of their children! They were told that deportation would be put on hold for 90 days while further consideration was made. In order to keep their family together, British Dad applied for British passports for the children. Initially the request was denied, but with the help of an attorney (go, superhero attorneys!), all three children were registered as British citizens that same day, December 16, 2020.
The British registration entitled the children to rights of residency in Denmark, just in time, being a mere few weeks before the United Kingdom left the European Union officially on December 31, 2020. Despite that, for the safety of their family, the dads decided to resettle in the United Kingdom.
The UK Decision
Of course, the December 16, 2020 registration of the children in Britain was not enough for the United Kingdom system, which has strict and specific law concerning surrogacy and parentage. In the United Kingdom, parents to a child by surrogacy are expected to apply to the English Family Court for a parental order within six months of the child’s birth. But the dads, not having plans to live in the U.K. prior to the incident where Denmark threatened to deport their children, had not researched and were not aware of the U.K. laws on the matter.
Fortunately, the British judge found it in the best interests of the children to give permanence and security to their family, and thus granted the order despite the six months having lapsed. The judge also had to overlook the impossibility of receiving necessary records from the first surrogacy agency — no longer in business — to retrospectively approve the payments to the surrogate.
Louisa Ghevaert, the U.K. solicitor who acted for the dads in the case, explained, “this case serves as a stark reminder to intended parents undertaking cross-border surrogacy arrangements that there is no international harmonization of surrogacy law.” This can leave children born through international surrogacy arrangements with unresolved and ”limping legal parentage,” and create very real difficulties for surrogate-born children’s citizenship, nationality, and residence status and even put them at risk of deportation.
Ghevaert further described the need for careful management of international surrogacy arrangements to address the complex legal issues and the far-reaching legal consequences that can arise. “Intended parents must remain vigilant about the risks and unforeseen problems that can crop up during their family building through surrogacy, such as the collapse of a surrogacy agency, lack of recognition of legal parentage, difficulties with birth registration and refusal to grant citizenship and passports for surrogate born children.”
Hope For Denmark?
I reached out to Kaspar Arianto, a Danish gay dad to twins himself. (Check out this podcast interview on his family’s story.) He was sad to read of the British-Danish family having to relocate due to the situation in Denmark. Arianto and his husband have been advocating for change in Denmark for families like theirs. In the beginning of January 2022, together with another couple, they initiated a petition to put the issue before the Danish parliament. A petition with over 50,000 signatures is required to be considered by the Danish parliament. As of January 10, 2022, their petition had over 73,000 signatures!
Arianto described the situation as pure discrimination. Parenthood in Denmark can currently be shared between a man and a woman, or between two women, but not between two men. Moreover, Arianto explained that the current political debate about co-fatherhood in Denmark requires parliament to (finally) bring up the topic of “how men have babes” including the question of international surrogacy.
The current Danish laws that prohibit international surrogacy with economic compensation were written in the 1980s. The law makes no room for the technological and ethical progress made over the past decades in countries such as the United States. Surrogacy now takes place with the aid of a gestational surrogate, third-party egg donor, and specific (and legal) consent of everyone involved. It is not the feared image from 30 years ago of baby-stealing from poor women in Third World countries.
Back in 1989, Denmark was the first country in the world to authorize civil partnerships between same-sex couples. But now, they need to reverse their backward ways when it comes to same-sex male parents. Otherwise, the consequences for families can be devastating.
https://abovethelaw.com/2022/02/denmark-threatens-to-deport-surrogate-born-children/

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