An international court has ruled that Iceland was within its rights to deny parental rights to two lesbians who obtained a baby boy through surrogacy in the United States.
For one thing, the decision from the European Court of Human Rights found, is that surrogacy is illegal in Iceland.
So that required the infant, when he came to Iceland about eight years ago with the two women, to be classified an unaccompanied minor who was in the custody of the government.
The two lesbians eventually obtained a foster care agreement with the government to care for the child, but their later adoption plan was disrupted because they divorced.
The women were identified as Valdís Fjölnisdóttir and Eydís Agnarsdóttir, and they were in court under their demands that Icelandic law provided their rights to “family life.”
“The right to respect for ‘family life’ does not safeguard the mere desire to found a family; it presupposes the existence of a family, or at the very least the potential relationship,” explained the court, which is based in France.
The two had traveled the California in 2013 to pick up the child, born to a surrogate, and they were listed as the parents on that state’s birth certificate. But Iceland noted neither of the women had a biological connection to the child, which made the surrogate his mother, and the surrogate’s husband the father.
The Icelandic courts had noted that even if an adoption were to proceed, the California “parents” would need to provide their permission.
The lesbians’ attempts to register the child as their son, in Iceland, and have him recognized as an Icelandic citizen, failed.
The court’s opinion noted that the two women had been able to provide foster care, and that meant their “actual enjoyment of their family life was not interrupted.”
Courthouse News explained, “Europe remains divided on the issue of surrogacy. Some countries, like Italy and Germany, explicitly forbid the practice. In other countries, including The Netherlands and Belgium, surrogacy contracts are unenforceable, meaning the adoptive parents have no legal rights if the biological mother changes her mind. Other countries like Ukraine allow the practice, and foreigners often hire Ukrainian women to serve as their surrogates.”
The opinion also explained that the child eventually was granted Icelandic citizenship “by a direct act of Parliament.”
The nation’s ban on surrogacy is to protect women who might be pressured into the arrangements, “as well as the rights of children to know their natural parents,” the court noted.
The opinion said that had the surrogacy arrangement taken place in Iceland, it would have been prosecuted with “criminal liability.”
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