Lapsi–vanhempi-suhteen vahvistaminen rajat ylittävän sijaissynnytysjärjestelyn seurauksena
Avainsanat:
kansainvälinen yksityisoikeus, kansainvälinen lapsioikeus, sijaissynnytys, Euroopan ihmisoikeussopimus, lapsen etu, ordre publicAbstrakti
Recognition of a parent–child relationship following a foreign surrogacy arrangement
A surrogacy arrangement refers to a situation where a woman agrees to carry and give birth to a child for an individual or a couple (intending parent/s). According to the Finnish Fertility Act of 2007, assisted fertility treatment may not be provided in Finland if there is reason to presume that the child will be given up for adoption. The purpose of this rule is to prevent domestic surrogacy arrangements. Surrogacy is, however, practiced in some other countries and intending parents have resorted to commercial surrogacy arrangements in more liberal jurisdictions. These arrangements are usually set up in countries with which the intending parents have no prior connection, such as Ukraine, Russia or the United States. After the child has been born, the intending parents have returned to Finland and filed for recognition of the filial relationship with the biological intended father. As there is no international instrument that would regulate the question of legal parenthood following a foreign surrogacy arrangement, the status of the child is determined by the general private international law rules concerning legal parenthood. The article contains an analysis of the domestic regulation and jurisprudence concerning the question of parenthood. The author criticises the reasoning of the district courts in some respects. It is also noted that the European Court of Human Rights has recently issued judgments on this matter. The author argues that what follows from these judgments is that the domestic courts should adopt a fundamental-rights approach based on judicial dialogue and produce a case-by-case decision in each foreign surrogacy arrangement. In its reasoning, the court should consider especially the protection of personal status and the relationship between the child and the biological father. The courts should find a balance between individual identity and collective identity, and establish justifiable criteria for the recognition of foreign surrogacy within Finnish jurisdiction.
