New rules for presumption of parenthood from 1 January 2022
The new rules mean that parenthood shall be presumed (i.e., automatically registered) for all married couples regardless of gender, which means that the regulation is becoming gender-neutral and equal. This also means that more parenthood will apply without an authority check, but that this can be annulled (end) if it were to later turn out that the legal conditions are not met.
Below, we have gathered everything you need to know about the new rules:
The picture above is from the Swedish information campaign "Automatically presumed parenthood"
Background to the legal amendment
The presumption of paternity has long applied according to Swedish law, meaning that a man who is married with a woman who gives birth to a child is presumed to be the child’s father. On 1 January 2022, rules will be introduced regarding presumption of parenthood equivalent to the presumption of paternity for married, female couples who are parents and married parents where one or both have changed their gender identity.
What do the new rules entail?
The new rules mean that parenthood according to Chapter 1, Section 9 of the Parental Code shall be presumed to exist for the woman who is married to or the registered partner of the person who gave birth to the child. A legal parenthood shall also according to Chapter 1, Section 11 a of the Parental Code be presumed to exists when the person who gave birth to a child is married and one of the spouses or both have changed gender identity.
These presumptions shall also apply when the spouse or registered partner who did not give birth to the child has passed away and the child is born within such a time after his or her death that the child may have been conceived prior to that.
The presumed parenthood means that it is the marriage that has a legal impact on the parenthood at the child’s birth. The meaning of a presumption of parenthood is that the parenthood is pursuant to law and does not need to be established through a confirmation or a judgment.
What applies for assisted conception?
Pursuant to Chapter 1, Section 9 of the Parental Code, the spouse or registered partner of the person who gave birth to the child shall be considered the child’s parent if all of the following criteria are met:
- The assisted conception (artificial insemination or in vitro fertilization) was done with the consent of the spouse, registered partner or cohabiting partner of the person who gave birth to the child.
- With regard to all circumstances, it is likely that the child was conceived through the assisted conception.
- The assisted conception was carried out at an authorised facility.
- The child has the right to access information about the sperm donor.
The same criteria apply for the cases in which a child was conceived through assisted conception and one or both of the parents have changed gender identity (Chapter 1, Sections 13 and 14 of the Parental Code)
Four criteria for parenthood in assisted conception
These four criteria must be met for parenthood in the event of assisted conception:
1. The assisted conception was done with the consent of the spouse or registered partner of the person who gave birth to the child
In order for consent to be able to form the basis of parenthood, the person consenting to the assisted conception must have been the spouse or registered partner of the person who gave birth to the child when the assisted conception that led to the child’s conception was carried out. If the person consenting to the assisted conception was a cohabiting partner with the person who gave birth to the child, presumption does not apply, but parenthood can then be established through an acknowledgement digitally or at the social welfare board.
According to the Genetic Integrity Act, an assisted conception may only be carried out if the woman’s spouse, registered partner or cohabiting partner has consented in writing to the assisted conception (Chapter 6, Sections 1 a and 1 b and Chapter 7, Sections 2 and 3 of the Genetic Integrity Act). Thus, according to Swedish legislation, a physician may not carry out an assisted conception if there is only oral consent to the assisted conception.
It should be possible to verify that somebody consented to assisted conception through the existence of a copy of the written consent. If the assisted conception was carried out in Sweden, the consent should have been provided on a form that is an annex to the statute, the National Board of Health and Welfare’s regulations and general guidelines (SOSFS 2009:32) regarding the use of tissues and cells in healthcare and in clinical research, etc.
Consent from the spouse, registered partner or cohabiting partner is one of the Parental Code’s criteria for the person who provided the consent to be considered the child’s parent even when assisted conception occurred abroad.
The Court of Appeal for Scania and Blekinge (T 2847-13) Parenthood was not established as cohabitation did not exist at the time of insemination:
A woman gave birth to twins after having undergone multiple inseminations. At the time of the first insemination, the woman was a cohabiting partner with a woman who provided her consent to the first insemination. When the children were born, the relationship between the women had ended and the question arose whether the women were cohabiting partners at the time of the insemination that led to the pregnancy. The court found that the cohabitating partner relationship was to be seen as ended at the time of the insemination and no parenthood for the other parent was thereby established.
2. It is probable that the child was conceived through the assisted conception
It is required that it is probable, considering all circumstances, that the child was conceived through the treatment that consent was provided for. If the connection between the assisted conception and the pregnancy is not probable or if the person who gave birth to the child, the spouse or registered partner of the person who gave birth to the child are in doubt that the child was conceived through the assisted conception, there may be reason to call into question the presumption of parenthood.
3. The assisted conception was carried out at an authorised facility.
IF THE ASSISTED CONCEPTION TOOK PLACE IN SWEDEN:
If the artificial insemination was carried out in accordance with Chapter 6 of the Genetic Integrity Act, an authorised facility means that the assisted conception shall either have been carried out at an officially financed hospital or a facility that received a licence from the Health and Social Care Inspectorate, IVO (Chapter 6, Section 2 of the Genetic Integrity Act).
If the assisted conception took place outside the body (IVF) according to Chapter 7 of the Genetic Integrity Act and donated reproductive cells were used, fertilization and uterine transfer may only have been carried out at the hospitals that have medical units where higher education for a medical degree or research is carried out or by a facility that received a licence from IVO in order for the facility to be considered authorised.
Göta Court of Appeal (T909-21) Established parenthood was annulled as the child was conceived through private insemination
In connection with the separation of two women who were married with each other, a question arose regarding the annulment of a parenthood established according to Chapter 1, Section 9 of the Parental Code. Because the child was conceived through a private insemination, the court found that conditions did not exist for legal parenthood and the court annulled the parenthood of the parent that did not give birth to the child. The legal relationship between the non-birthing parent and the child thereby ended, even though this parent had acted as the child’s parent for eight years.
IF THE ASSISTED CONCEPTION TOOK PLACE ABROAD
If the artificial insemination or IVF was carried out abroad, the facility authorisation shall be pursuant to regulations in the country in question or be clear there in another manner, e.g. by the facility having a licence to carry out assisted conception. The authorisation must also cover the kind of treatment carried out in the individual case, such as artificial insemination with donated sperm.
4. The child has the right to access information about the sperm donor
If the child was conceived through assisted conception in Sweden in accordance with the regulations in the Genetic Integrity Act, the child is entitled, once he or she has reached an adequate level of maturity, to access the information noted about the donor and genetic siblings in the hospital’s special record (Chapter 6, Section 4 and Chapter 7, Section 7 of the Genetic Integrity Act).
The child can contact the social welfare board in the municipality in which the child is resident, or the hospital that carried out the assisted conception, in order to get access to the information in the hospital's special record.
If the child was conceived through assisted conception abroad, the child must be able to obtain basic information on the donor’s identity, e.g. the donor’s name, through the facility or otherwise. Even if there may be certain restrictions as to when the information becomes available to the child, e.g., that the child must have reached a certain age, the requirement must be met that the child shall have a right to information about his or her genetic origin.
What happens if the criteria are not met?
The new regulations regarding the presumptions of parenthood mean that an authority check of whether the criteria for a legal parenthood upon assisted conception with donated sperm are met will not automatically take place.
But if any of the four criteria above are not met, the presumption of parenthood may be annulled later.
If the parents let the parenthood be registered in accordance with the presumption even though the criteria for parenthood are not met, e.g., if the child was conceived through at-home insemination or through assisted conception abroad with an anonymous donor or that the assisted conception was not carried out at an authorised facility or without consent of the other parent, the parenthood may be annulled later.
An incorrect presumption of parenthood may come forth in a later phase of the child’s and parents’ lives and the parenthood may then be annulled. There is no limitation in time for the possibility of annulling an incorrect presumption of parenthood.
An occasion when a parenthood can be called into question is in connection with a separation of the parents. The parenthood can also be called into question after the death of the presumed parent. The parenthood can then be called into question in court by the heirs of the deceased.
An annulment of the parenthood means that the legal relationship between the child and the previously presumed parent ends.
Pursuant to Chapter 1, Section 9 of the Parental Code, the spouse or registered partner of the person who gave birth to the child is presumed to be the child’s parent if all of the criteria presented above are met.
This means that if the assisted conception was done on one's own (at-home insemination) or through a treatment abroad with an anonymous donor, all of the criteria in the above regulation are not met, which can lead to the presumption of parenthood possibly being annulled later. In these cases, a paternity shall instead be established for the man whose sperm was used.
The social welfare board is obliged to investigate who the father of a child is and to ensure that the paternity is established if there is no presumption of paternity or parenthood, i.e., if the criteria above are not met (Chapter 2, Section 1 of the Parental Code).
In what ways can a parenthood be annulled?
- By a public court declaring that the spouse or registered partner in the marriage is not the parent of the child (Chapter 1, Section 9 a Paragraph 1 of the Parental Code)
- The spouse or registered partner in the marriage approves in writing another person’s written acknowledgement of paternity or parenthood, a so-called three-party case (Chapter 1, Section 9 a, Paragraph 2 of the Parental Code).
The two ways of annulling a presumed paternity are described in further detail under the respective heading below.
1. Annulment of presumption of parenthood by judgment
The court must declare that the spouse or registered partner of the person who gave birth to the child is not the parent of the child if any of the following circumstances exist:
The person who gave birth to the child underwent artificial insemination or IVF, but the criteria for assisted conception, as presented above, are not met, or
If the person who gave birth to the child did not undergo such a treatment.
Action to annul a presumption of parenthood in court can be brought by the child, spouse or registered partner in the marriage or, under certain conditions, the spouse’s heirs if the spouse or registered partner is deceased (Chapter 3, Sections 14-15 of the Parental Code).
Action to annul a presumption of parenthood is brought before the court in the city in which the child has his or her residence (Chapter 3, Section 16 of the Parental Code).
According to Ordinance (1949:661) regarding the obligation for courts to provide information in cases and matters according to the Parental Code, etc., the court is obliged to notify the social welfare board if the court has annulled a parenthood. This means that, after receiving such a notification, the social welfare board is obliged to try to investigate who the father of the child is and ensure that the paternity is established.
If it is not possible to establish a paternity, the investigation will be closed and the person who gave birth to the child becomes the child's only parent and guardian. An application for adoption can thereafter be submitted to the district court by the spouse, registered partner or cohabitating partner of the person who gave birth to the child.
2. Annulment of the presumption of parenthood through another person’s acknowledgement – so-called three-party case
It is possible to annul the presumption of parenthood without a trial if it is done at the same time that another person acknowledges that the person is the father, parent or mother of the child (Chapter 1, Section 9 a, Paragraph 2 of the Parental Code). This can be done after contacting the social welfare board.
According to the Parental Code, the social welfare board’s obligation to begin an investigation is limited to cases when it has been requested by a guardian or by a spouse or registered partner in the marriage. The board can also begin an investigation in other cases. The board should, without support of a special regulation, be able to participate in an investigation of the parenthood of a child who was born in wedlock, when the board finds grounds to do so in consideration of the child’s best interests and other circumstances.
An outside person who believes himself to be the father of a child born in a marriage has no right to request an investigation of the parenthood. However, this person can report to the social welfare board that he believes he is the father of the child. After a preliminary assessment, an investigation can be initiated even if the guardian or spouse or registered partner objects to this.
If the investigation concludes that the spouse or registered partner in the marriage cannot be the parent of the child, the presumption of parenthood can be annulled through a so-called three-party case. This means that when it is clear to the person who gave birth to the child and the spouse or registered partner that the spouse or registered partner is not the child’s parent, the spouse or registered partner can approve another person’s acknowledgement of paternity or parenthood.
In a three-party case, the spouse’s or registered partner’s presumed parenthood is annulled at the same time that the other person’s paternity or parenthood is established.
If it is not possible to annul the parenthood through a three-party case, the case can be turned over to a court.
What are the consequences of annulling a parenthood?
The consequences of an annulment of parenthood, especially if it happens once the child has had time to establish family ties with the parent, can be invasive and unfortunate both for the child and for the parent who considers themselves to be the child’s parent. If the parenthood is annulled, the child loses a legal parent.
It can be confirmed that an annulled paternity can have far-reaching psychological consequences for the child. In the cases that a parenthood is annulled, the relationship between the child and the former legal parent is at risk of being seriously impacted.
Special information on custody after annulled parenthood
Chapter 6, Section 1 of the Parental Code states that all children are entitled to care, security and a good upbringing. The care obligation towards a child ends when a parenthood is annulled. The parent then loses his or her right to decide in matters concerning the child and the parent no longer has an obligation to ensure that the child's basic needs in physical and mental respects are met. If the parents have had joint custody, the person who gave birth to the child is given sole custody and has the sole decision-making right in important matters concerning the child.
Special information on visitation after annulled parenthood
The child’s right to visitation with the person whose parenthood has been annulled can also be affected.
Pursuant to Chapter 6, Section 15, Paragraph 3 of the Parental Code, the child is entitled to visitation with another person who is particularly close to the child. The child may thereby in certain cases be entitled to visitation with the person whose parenthood has been annulled.
Pursuant to Chapter 6, Section 15 a, Paragraph 2 of the Parental Code, it is only the social welfare board that can bring action if somebody other than the child’s legal parents wants visitation with the child. Hence, the person whose parenthood has been annulled cannot him- or herself bring action regarding this. The social welfare board must bring action for visitation if it can be considered to be in the child’s best interests. Before the social welfare board decides to bring such action, an balancing shall be done between the disadvantages a process entails and the advantages visitation can lead to. However, social welfare boards rarely bring action regarding visitation with another relative than the child's legal parents, which is why the possibilities to bring about visitation with the person whose parenthood has been annulled may be small.
There are also instances when visitation is not brought about with reference to the best interests of the child. For example, visitation can be denied with reference to the departures from the visitation sessions being so traumatic for the child that it cannot be considered to be consistent with the child’s best interests that they are carried out. Or that the conflict between the child’s legal parents and the person who wants visitation is deemed to be so extensive that a visitation would not be in the best interest of the child.
The child furthermore risks not only losing a parent, but also the tie to his or her entire family. The contact with them may indeed be maintained, but there is also a risk that the contact gradually ends. Due to the small possibilities that exist to have a right of visitation established to a person to whom the child is particularly close, the child has small possibilities of keeping the contact with his or her former relatives.
The child is accordingly in some cases dependent on the person who gave birth to the child ensuring the child's right to visitation both with a former legal parent and former relatives, which might not be done as there is usually a conflict situation in the event of an annulment of paternity.
Application for an immediate family adoption
In order to legally confirm a parenthood that does not meet the criteria presented above and to avoid a future undesired annulment, the presumption of parenthood needs to be annulled and the child needs to be adopted by the spouse, the registered partner or the cohabiting partner of the person who gave birth to the child.
A legal parenthood for the person who did not give birth to the child that cannot be annulled later presupposes an adoption procedure in case the criteria presented above are not met.
The spouse or registered partner of the person who gave birth to the child can apply with the district court to be allowed to adopt the child as an immediate family member in order for it to become a legal parenthood. Before that, the spouse or registered partner of the person who gave birth to the child accordingly first need to apply to annul the presumption of parenthood.
According to Swedish law, anyone who is 18 years old or older may adopt. As a main rule, it is required that the parent who is the guardian of the child must consent to the adoption.
There is no form to apply for adoption. The person who wants to adopt instead makes an adoption application in his or her own document. A special civic registration certificate for adoption, both for the person who wants to adopt and for the person being adopted, must be appended to the application.
In the court’s handling, the person who is the child’s parent will be given an opportunity to make a statement within a certain amount of time (Chapter 4, Section 18 of the Parental Code). This means that if the paternity has been established, the person established as the child's father will be given an opportunity to make a statement. If he is also the child’s guardian, his consent will be required for the adoption to go through (Chapter 4, Section 7 of the Parental Code).
The person being adopted shall be considered the adoptive parent’s child and not the child of his or her former parents. If a spouse, registered partner or cohabiting partner adopts his or her spouse's, registered partner’s or cohabiting partner’s child, the child is considered to be their child together (Chapter 4, Section 21 of the Parental Code). This means that if a paternity or parenthood has been established for the child, the person established as the father or parent will not be considered the child’s parent after the child has been adopted by the spouse, registered partner or co’ of the person who gave birth to the child.
An adoption may not take place against payment. An adoption may therefore not be approved if compensation has been given or promised by any side or if contributions to the child's maintenance have been agreed.
A decision on adoption is thereafter made by the district court. The court conducts an assessment of suitability in adoption cases to determine if the adoption shall be permitted. Chapter 4, Section 6 of the Parental Code states that permission may be granted only if the adoption is advantageous for the child and the applicant has raised the child or wants to raise the child or if there is special reason for the adoption, considering the personal relationship between the applicant and the child. The child’s own wishes shall be given significance in the assessment. In adoption, the district court tasks the social welfare board in the municipality to conduct an adoption investigation.
More information on the handling of adoption cases is available on the Swedish National Courts Administration website, Adoption within Sweden - Courts of Sweden
External link, opens in new window. (link to page in Swedish)
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