The Ukrainian foster mother became pregnant by insemination before giving birth in 2013. After the birth, the children moved to Denmark with the Danish couple, and both the Danish woman and man have custody.
The Danish man is the biological father of the children, and he is therefore recognized as the children’s father. The Danish woman, on the other hand, had to apply to adopt the children.
But the Supreme Court has refused because the foster mother was paid.
The Danish woman’s lawyer, Maryla Rytter Wróblewski, says that the Danish couple is considering going to the European Court of Human Rights.
The lawyer also believes that the verdict shows that the Danish Adoption Act should be changed.
Section 15 of the Adoption Act provides an absolute prohibition against adopting if someone who is to give consent to the adoption has received money for it.
– The Supreme Court says that the law should be amended because Article 8 of the Convention on Human Rights presupposes that in each case a concrete assessment can be made of the children’s interest in having a parent against the general interest in avoiding trafficking in children.
– The refusal of adoption is thus an interference with the children’s right under Article 8, says Maryla Rytter Wróblewski.
However, a majority of four to three in the Supreme Court has ruled that the refusal of adoption is not a violation of the Convention on Human Rights. Therefore, the woman gets rejected.
– It is clearly planned that section 15 in its current wording cannot remain as it is. It needs to be changed. It is then up to the legislature to do so, says Maryla Rytter Wróblewski.
She hopes a general revision of the law will mean the couple will be allowed to adopt anyway.
Frank Høgholm Pedersen, assistant professor of family law and reproductive law at the Faculty of Law at the University of Copenhagen, says that the rules for foster mothers date from the mid-1980s. And they try to focus on the welfare of foster mothers.
– The ruling in the Supreme Court shows that there is a need for a review of the regulation, so that it is ensured that focus is placed on the children, he says.
The Danish regulation has never been based on the principle of the best interests of the child, and that is a shortcoming, he believes.
– Instead, the starting point is to protect vulnerable women from being exploited.
– It is respectable, but it is done in an inefficient way. And in addition, the regulation has unfortunate consequences for the affected children, says Frank Høgholm Pedersen.
He refers to the fact that the principle of the best interests of the child must be given special weight in Danish legislation.
– Still, it has not happened in this area, he says.
Maryla Rytter Wróblewski says that it is important for the Danish couple that they are both recognized as parents.
– It has been important for them. Partly for identity and emotional reasons – but it has also been important to them for practical reasons.
– Denmark is a very registered society, and when you are not registered as a parent of the children you handle in everyday life, it has some practical consequences, she says.
The woman may, for example, experience many questions when she is not the mother of the children on paper.
Frank Høgholm Pedersen estimates that it is probably between 50 and 100 children who come to Denmark every year after being born to foster mothers abroad.