When I turned to the Swedish authorities to register the birth of my son in 2017, I knew there might be trouble ahead. As a Swedish citizen living abroad, my children had the right to Swedish citizenship – or so I thought. But having grown up in Sweden and become a sociologist working on issues of donor conception, parenthood and family life, I knew enough about Swedish law to know that it was socially and legally conservative, particularly in matters of parenthood and family life. Despite Sweden's reputation abroad as some kind of social haven of equal rights, I wasn't too convinced that the Swedish authorities would be amenable to my request.
The backdrop of the story was this: I have two children in the UK in the context of a same-sex partnership. A daughter (that I gave birth to) in 2013, and a son (to whom my partner gave birth) in 2017. Both were conceived using the same known donor. The issue of who gave birth to which child is to us a parenthesis in our lives as parents, something known, but barely relevant in the midst of family life. However, this became the be-all and end-all of our family in the eyes of the Swedish authorities. In the UK, I am the legal parent of both of my children. But when I turned to the Swedish authorities to register them as my own, I learnt that Sweden only recognised my daughter – to whom I gave birth – as mine.
Reflecting on my part in planning having a second child, being present at his conception, attended the gruelling 48-hour long labour my partner endured, and my subsequent breastfeeding (yes!), nappy changing, baby wearing, night-feeding and severe sleep deprivation, I wondered who they thought I was. I was also sure that my son knew I was his mum.
Had I been a Swedish man, married to a woman abroad, and become a parent using donor sperm, I would have been able to claim legal parenthood through the existing paternity presumption in place for Swedish men who become fathers abroad (by virtue of either their marriage to the child's mother, or the confirmed status as the child's legal father in their country of residence). But as a woman, despite being married to the child's birth mother, and on his birth certificate, my son and I were legal non-entities in the eyes of Swedish law.
The Swedish authorities told me the only pathway available for us was for me to adopt my son in the UK, and then have Sweden recognise my adoption. Ironically, in the UK, one cannot adopt a child who is already legally one's own! The only other route available was to move to Sweden permanently, after which I could apply to adopt him there. This, we thought, was a little extreme, and unfair, given that a heterosexual couple in the same situation would not be required to turn their life upside down in the same way to have their parenthood recognised.
Another discriminatory outcome of the same law was that when lesbian couples had children abroad (both recognised as legal parents in their country of residence), on migrating to Sweden, Sweden would recognise the birth mother but the legal parenthood of the non-birth mother would be rejected. Essentially, Sweden was de facto stripping mothers of their children, and orphaning children, legally speaking. One of the adverse outcomes for us, apart from the emotional injury, was that while my daughter was deemed to belong to me and therefore granted Swedish citizenship, my son was not.
The legal backdrop to the situation we found ourselves in was due to a combination of Sweden's laws on paternity abroad and its laws on parenthood through assisted conception. Together these produced a homophobic blind spot in terms of same-sex couples who become parents abroad. Sweden's laws governing parenthood following fertility treatment recognised same-sex couples in cases where the assisted conception had been performed in a Swedish clinic, or (since 2019), in an authorised clinic abroad (meaning one that safeguards the child's right to access information about their genetic origin – an idea I argue needs critically examination in our book due to be published in the autumn. But having used a known donor and self-arranged conception, our family did not fit the bill.
Sweden's particular stance on parenthood through assisted conception is specifically formulated to protect the child's right to knowledge of their genetic origins; Sweden operates an identity-release donation system since 1985. However, as it turned out, this was only a concern when the parents were a same-sex couple; Sweden's paternity presumption for men who become fathers abroad meant a man would have been recognised as the father even if the child had been conceived using donor sperm. Moreover, Sweden's insistence that we adopt seemed an erroneous requirement: if the issue with my motherhood was my son's presumed lack of knowledge of his genetic parentage, an adoption would in no way improve the situation. In a case of double irony, we had a known donor – a man who the children knew as their donor and who we met regularly – so both children already had full knowledge of their genetic origin.
Sweden's rejection of my attempt to register my son with the Swedish authorities in 2017, spelled the start of a protracted legal battle with the Swedish state. With the help of RFSL (the Swedish Federation for LGBTQ rights; specifically Anna Nordqvist) and solicitor Kerstin Burman, we appealed through the Swedish civil court system to the highest instance, the Högsta Forvaltningsdomstolen. We lost.
Our only way forward was to take Sweden to the European Court of Human Rights (ECHR) for breaking Article 8 (the right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights. Our battle came to a close in the autumn of 2021 when the ECHR declared that they were not going to assess our case, with no right to appeal. At the time, we thought that was it.
Then, perhaps as an outcome of our and others' litigation, in early 2022, the Swedish government put forward a proposition to change their own law in matters of parenthood established abroad (2021/22: 188). In brief, the suggestion was to broaden the law governing parenthood abroad to include a motherhood presumption that would operate in similar ways to the existing fatherhood presumption. The proposed law change was debated in the Swedish parliament in June 2022, and passed with an overwhelming majority. Finally, Sweden will stop discriminating against us on the basis of our sexuality. About time, Sweden!
The new law came into effect on 1 August. Hopefully, I now have a simple paper exercise ahead of me to register my son with the Swedish authorities, which, if successful, will grant him Swedish citizenship. But let's see how it goes…