Surrogate Motherhood Controversy Pushes Norwegians to Abroad

Surrogate mothers are not permitted in Norway according to the Biotechnology Act and the Children Act. However, some Norwegians use a surrogate mother abroad. The tax office, the Norwegian Labour and Welfare Organisation and Bufetat have now received guidelines directing them on how to process cases relating to surrogate mothers in accordance with today’s rules. This is to ensure the legal rights of the children who are already in Norway.

Regulation of egg donation and surrogate mothers in Norway

The Biotechnology Act regulates the conditions for assisted fertilisation in Norway. Insemination of sperm and own eggs in the birth mother is permitted. The prohibition on the insemination of eggs into the body of another person means that this form of surrogate motherhood cannot be performed pursuant to the Biotechnology Act. Any agreement made on surrogate motherhood, regardless whether egg donation has been used, is not binding pursuant to Norwegian legislation, cf. section 2 of the Children Act.

Egg donation/surrogate mothers abroad 

In spite of the Norwegian prohibition against surrogate mothers, some Norwegians use egg donation/surrogate mothers abroad. Each nation’s laws and rules regulate whether this is legal. The Norwegian authorities, including foreign service missions, give no guidance on the rules in other countries in this field. If a person resident in Norway uses egg donation or a surrogate mother in a country where this is not prohibited, the Norwegian authorities assume that this is then in accordance with the rules in the country where it is performed.

Establishment of maternity and paternity and application for adoption after egg donation/use of surrogate mother 

No special rules apply to establishing maternity and paternity and applying for adoption after using egg donation/a surrogate mother. The general rules therefore apply. This means that the person giving birth to a child is the child’s mother, and that paternity is established in accordance with the provisions in the Children Act. A person who wishes to become a legal parent of the child must apply for adoption. The national population register is responsible for registering parental responsibility, which can be registered there if the paternity/maternity has been established pursuant to Norwegian law. It is important to be aware that establishment of paternity by acknowledgement or change, or by acceptance, does not mean that parental responsibility is automatically established. In such cases, parental responsibility must be established through an agreement, and the parent must personally register with the national population register. You can read more about the applicable law for establishment of parenthood for children born by a surrogate mother abroad in the Ministry’s letter to the tax office, the Norwegian Labour and Welfare Organisation and Bufetat. The Norwegian authorities cannot give any advance promise relating to the establishment of maternity/paternity or adoption of children born by a surrogate mother abroad. Thus no binding promise can be given that a person who enters into an agreement on egg donation/surrogate maternity will be able to bring the child to Norway.

Cases that are erroneously registered in the national population register 

Registration in the national population register is not an action that creates a legal right, and therefore does not mean establishing legal ties to the child. The question of who the child’s mother and father are is decisive in a number of legal contexts. It is therefore important as early as possible to clarify who the child’s legal parents are to prevent confusion and disputes about this later in life, for example in the case of death or breakup of a relationship.

The Directorate of Taxes has found that there are cases where maternity or paternity is erroneously registered in the national population register. These cases are now put on hold until the child has been legally secured by establishing its parenthood. That the cases are put on hold does not mean, however, that the child is secured legally. The families are encouraged to cooperate and initiate procedures for the legal security of the child as quickly as possible.

To assist these families, the East regional office of Bufetat has been assigned particular responsibility for guiding the families in doubt about how to proceed and which agency to address. These cases will be given priority by the agencies. Cases about adopting a stepchild will be processed by Bufetat without including the municipal child welfare service. This will speed up the processing of these adoption cases. The Ministry’s letter to the agencies explains in more detail the processing of cases erroneously registered by the agencies.

The Ministry will put together a temporary transition scheme for the cases where children already in Norway are not legally secured under the rules in force. Such a transition scheme will include various measures, some of which will need to be established by law. A legally authorised scheme cannot be addressed by Parliament until the spring of 2012. The Ministry will obtain information from the agencies as they gain experience in processing these cases.

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