Johanna Westeson - The ICHRP

In Sweden, according to local ordinances (but consistent in the whole country) only one
party of a lesbian couple is entitled to ART treatment. This is motivated in part by an
attempt to equate same-sex couples to opposite-sex couples, where only one party – the
woman – can undergo assisted insemination, and also by an effort to limit the impact on
public finances. 333
Case law: best interest of the child overruling requirement for known donor
In the two Swedish 1997 appeals cases ÖÄ 3324-06 334 and ÖÄ 3323-06, 335 the applicants
were two women who had applied to be granted second parent adoption of each others’
biological children. The two children had been born to the two women, respectively,
following assisted insemination carried out abroad, with sperm from an anonymous donor.
The District Court denied the application for second parent adoption, mainly because the
sperm donor had remained anonymous – which is contrary to Swedish legislation and not
possible when sperm donation takes place within Sweden. According to the District Court,
this had deprived the children their right to know who their father was, and that
circumventing this fundamental right by means of using adoption was unacceptable.
According to the Court of Appeal (whose rulings are final), adoption in both cases and
thereby the security of two legal parents was in the best interest of the child. There is no
legal requirement that fatherhood be determined for adoption to be granted. The Court
found that both women had a strong parental connection to the children and that adoption
had been recommended by the Social Services who had given their expert opinion. The
Court also noted that no special concerns arise with regard to the fact that the cases
involved a same-sex couple rather than an opposite-sex couple.
By contrast to the Swedish provision that the best interest of the child requires that the
identity of egg and sperm donors is known, Denmark has instead opted for anonymity.
According to Act 923 of 4 September 2006 on assisted conception in relation to medical
treatment, diagnostic, and research etc, 336 a requirement for both egg and sperm donation is
that donors are anonymous to the woman/couple undergoing the treatment (§ 14).
Similarly, the identity of the receiving woman/couple will not be revealed to the donor. 337
Spain: same-sex marriage, adoption, and ART
In Spain, the Civil Code was modified on 1 July 2005, through Law 13/2005, 338 allowing
same-sex couples to marry. Article 44 of the Civil Code now states that [a] man and a
333 See background information in District Court Case T 499-08, Uppsala District Court, 22 October 2008. In
this case, two women challenged this rule, as one of them after three unsuccessful attempts of assisted
insemination turned 40, which is the age limit to undergo the procedure. Six attempts are covered by Swedish
health insurance, but the partner had been denied the right to undergo the remaining three, with reference to
the above-mentioned rule. The District Court found that the couple had been unlawfully discriminated
against. The ruling has been appealed.
334 Göta Court of Appeal (appeals court for south eastern Sweden), decided on 9 February 2007.
335 Göta Court of Appeal (appeals court for south eastern Sweden), decided on 9 February 2007.
336 Available in Danish only.
337 Information about the law from Danish Health Agency, Sundhedsstyrelsen, December 2006. Available in
Danish at
http://www.sst.dk/publ/PUBL2006/KOT/KUNSTIG_BEFRUGTNING/VEJL_IVF_OA_DEC06.PDF. Last
visited on 20 February 2010.
338 Law 13/2005 of 1 July, by which the Civil Code is modified in the area of the right to contract marriage,
(BOE núm. 157, de 02-07-2005, pp. 23632-23634). Only in Spanish.
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