Johanna Westeson - The ICHRP

adopt foreign children, although they must be married. 318 Individuals can adopt both Dutch
and foreign children.
The amended version of the Civil Code also regulates second parent adoption (Art 228). If
the spouse, registered partner, or other life partner of the parent of the child is adopting, the
adopter and the parent must have been caring for the child for at least one year, unless the
child was born in a relationship between the mother and her female life partner.
Medically assisted insemination and in-vitro fertilization in the Netherlands are available
to women in both different-sex and in same-sex relationships, as well as to single women.
These principles follow from the general anti-discrimination law, according to which
discrimination on the basis of sexual orientation is prohibited. 319 As a consequence, this
also gives a right to infertile partnered lesbians as well as to infertile single women to
undergo IVF.
The female partner of a woman becoming pregnant through artificial reproduction
technologies does not automatically become the co-parent of the child. Instead, the female
partner of a woman giving birth gets so-called ‘joint parental responsibility’ for the child,
and the couple can choose to start an adoption procedure to make the partner a full legal
parent. A 2007 Government Commission has recommended that the female partner of a
woman giving birth can acknowledge the child as her own, equal to the possibility now
open only for men. Such acknowledgment can be done before or after the birth of the child.
As of December 2009, legislative proposals in line with these recommendations are being
prepared by the Dutch government. 320
Sweden: cohabitation, same-sex marriage, ART
The Swedish marriage legislation was amended in 2009 to include the right of same-sex
couples to marry. The relevant change in the country’s Marriage Code entered into force
on 1 May 2009, through the Act (2009:253) amending the Marriage Code, 321 at which time
the Act on Registered Partnership 322 was abolished. Article 1 of the Marriage Code now
states: “This Code contains provisions about marriage relations. Those two who marry
each other will be spouses.” 323 Hence, the legislature chose not to mention same-sex
couples specifically, but rather to make its language gender neutral.
Registered same-sex partners have been able to adopt children since 2003, either jointly or
in the form of second-parent adoption, and also to jointly exercise custody over children. 324
Most other rights of married spouses were also enjoyed by registered partners before the
318 Act on reception of foreign children for adoption of 8 December 1988, as amended as of 1 January 2009
by the amending Act of 24 October 2008 (published in Official Journal of the Kingdom of the Netherlands
2008 nr. 425).
319 2 March 1994. See in particular Articles 1 and 7 (1)(c).
320 Information from Kees Waaldijk, University of Leiden, at
http://www.law.leiden.edu/organisation/meijers/research-projects/samesexlaw.html (last visited on 8
December 2009), and via email correspondence.
321 2 April 2009, only in Swedish.
322 Repealed through Act (2009:260) repealing the act on registered partnership, 2 April 2009.
323 This translation is my own.
324 The Children and Parents Code (1949:381), as amended, Chapter 4 and § 3:1 Act (1994:1117) on
registered partnership (providing that what is said about ‘spouses’ in other legal texts will also include
registered partners. This law has now been repealed, see above).
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