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Denmark: Supreme Court Rules Status as Co-mother Cannot Be Revoked

(Nov. 26, 2019) On November 12, 2019, the Danish Supreme Court ruled that a co-mother cannot opt out of her status as the co-mother of a legally recognized child. (Sup. Ct., Nov. 12, 2019, Sag BS-48699/2018-HJR.)

Since  2013, co-mothers—lesbian partners of birth mothers who have received medical assistance to become pregnant—have been afforded the same legal status in Denmark as male partners of birth mothers. Thus, under current rules,

[i]f a woman receives fertility treatments from a health professional or under the guidance and responsibility of a health professional, [then] her spouse, registered partner, or partner shall be recognized as the child’s father or co-mother if this person has given consent to the treatment and the child may be assumed to have been conceived through such treatment. … The consent must be given in writing and include a declaration that the man is designated as the the father, or that the woman is designated as the child’s co-mother. (§ 27 Børneloven [Danish Child Act] (LBK nr. 772 af 07/08/2019) (in Danish, translation by author).)

The Child Act also allows for mothers, fathers, and co-mothers to bring a case pertaining to the maternity or paternity of the child before the child turns six months old. (§ 5 Børneloven.)

In this particular case, the couple decided jointly to undergo fertility treatments, the co-mother was recorded as the co-mother before the birth of the child, and the co-mother reaffirmed the co-maternity of the child upon the birth of the child. However, following the birth of the child, the co-mother and biological mother both wished to revoke the co-mother’s status because the co-mother did not have a relationship with the child, noting that the couple had separated shortly after the child’s birth. Thus, both the mother and the co-mother wished to see the co-mother “deregistered” as co-mother in the population registry. The parents also argued before the lower court that because single mothers are allowed to receive fertility treatments, registered parents, when in agreement, should be able to revoke the status of a co-mother if this is in the best interest of the child. The child was represented by its own counsel, supplied by the state, which argued on the basis of article 3 of the UN Convention on the Rights of the Child that the best interest of the child lay in having two parents, even though the couple were no longer in contact with each other. (Sag BS-48699/2018-HJR.)

The lower and appellate courts both ruled that the request to revoke the co-mother status could not be granted. The Supreme Court affirmed this, noting that no circumstances existed whereby a legally binding registration as a co-mother could be revoked. The fact that the initial treatment may have been initiated before the couple was living together, in violation of guidance on assisted pregnancy, did not affect the outcome. The co-mother had approved of the fertility treatment of the partner she lived with, and had upon the birth of the child acknowledged her co-maternity of the child. Thus, the status of co-mother had been lawfully assigned.

The co-mother had declared in the appeals court that the child was free to approach her if he wished to, a statement she retracted in the Supreme Court. However, as was evident from the Supreme Court’s decision, under Danish law a parental bond cannot be severed just because the parents so desire.