Refusal of adoption after payment of surrogate mother

Case no. BS-47957/2019-HJR
Judgment delivered on 16 November 2020

A
vs.
The National Social Appeals Board

In December 2013, surrogate mother M gave birth to two children in the Ukraine fol-lowing an agreement with a Danish married couple, A and F. Shortly after the birth, A and F brought the children to Denmark. F was the genetic father of the children, and he was recognised as their father in Denmark. M was not the genetic mother of the children, but it was unknown whether A was. In 2018, the State Administration approved joint custody of the children for A and F. The question then remained whether A was entitled to adopt the children as their step mother.

Section 15(1) of the Danish Adoption Act contains an absolute ban on issuing an adoption decree if any of the parties required to consent to the adoption are to give or receive any kind of payment or consideration. The Supreme Court proceeded on the basis that such consideration had been paid to M, and thus held that it would be contrary to Section 15 of the Adoption Act to issue an adoption decree to A.

The refusal of adoption amounted to a restriction of the children’s right to respect for private and family life under Article 8 of the European Convention on Human Rights. Referring to the European Court of Human Rights’ case law, the majority of the Supreme Court held that the children had a significant interest in being adopted by A and securing legal recognition of their identity as A’s children. However, based on an overall assessment, the majority of the Court ruled that the children’s interest – balanced against the general consideration that children should be protected against being traded and that exploitation of vulnerable women should be avoided – did not at the present time justify considering the refusal of adoption as infringing Article 8.

The High Court had reached the same conclusion.