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Fastställande av rättsligt föräldraskap

Darinder Magnusson, Annica (2008)
Department of Law
Abstract
The purpose of the study is to investigate how the legal parenthood is regulated in the law now in force. I focus on the establishing of paternity and motherhood as well as on how parenthood is regulated in the situation of an artificial insemination. The focus of my investigation is on the best interest of the child in question. I have also put the subject of parenthood in a historical context to get a comprehensive background and to understand why the legal regulation of parenthood looks like it does today. At present legal practice concerning the establishing of paternity, the husband in a marriage is presumed to be the father of the children of whom his wife gives birth. The presumption may be annulled under certain circumstances... (More)
The purpose of the study is to investigate how the legal parenthood is regulated in the law now in force. I focus on the establishing of paternity and motherhood as well as on how parenthood is regulated in the situation of an artificial insemination. The focus of my investigation is on the best interest of the child in question. I have also put the subject of parenthood in a historical context to get a comprehensive background and to understand why the legal regulation of parenthood looks like it does today. At present legal practice concerning the establishing of paternity, the husband in a marriage is presumed to be the father of the children of whom his wife gives birth. The presumption may be annulled under certain circumstances though, as stated by the law. It is however only the husband and the child who can commence an action in a paternity lawsuit. Another man who might believe that the child in fact is his, thus have no right to commence an action in a paternity lawsuit. If the mother is not married at the point of birth, paternity is instead determined through confirmation or verdict. According to the legal practice concerning the establishing of motherhood a woman who gives birth to a child is always presumed to be its mother. Due to this fact there was no legal regulation regarding motherhood in Swedish law for a long time. Ever since egg donations were made legal in Sweden, it has been necessary to legally regulate the question of motherhood in this special case. Thus, there is now a special legal regulation stating that it is the woman who gives birth to the child that is presumed to be its mother, and not the woman who donated the egg. Annulment of the presumption of motherhood is not regulated in Swedish law, and thus this situation must be managed through common legal practice. If the mother in question is married, paternity in the situation of an artificial insemination is determined through the presumption of paternity as stated previously. An equivalent regulation does not exist for the woman, who is the mother's registered partner. In SOU 2007:3 it is suggested that a presumption of parenthood, just like the presumption of paternity, should be practiced, thus automatically rendering the registered female partner of the mother the child's legal parent. A child conceived through artificial insemination in Sweden has a legal right to know the identity of both the egg and sperm donator. This is merely of interest however if the parents decide to inform the child that it was conceived though artificial insemination, which the parents have no legal obligation to actually do. Furthermore, investigations have shown that many children do not know that they were conceived through artificial insemination. After studying the presumption of paternity I have found it to contain numerous significant flaws, especially when it comes to the child's right to know its biological origin, but also concerning the child's right to a consistent parenthood. Lacking any better alternative and despite recent accomplishments in DNA technology as well as the fact that more people chose not to marry, it is still according to me a fairly good practice. An alternative to the presumption of paternity would be to have all men confirm paternity. It could possibly improve the child's right to a consistent relationship with the father since the man through an action has confirmed that it is his child. If the presumption of paternity should be considered being in the best interest of the child, I think that it is imperative to further develop the rights to commence action in paternal law cases. The right to commence action should to a larger extent consider the child's right to know its biological origin. I do not think that it is in the well being of the child to develop the presumption of paternity into a presumption of parenthood that would be applicable on the registered partner of the mother. The introduction of such a presumption would undoubtedly result in depriving the child of one of its genetic parents, which can not be considered as being in the best interest of the child. Instead, to further accentuate the child's need to know its biological origin, a legal obligation for the parents to inform the child that it has been conceived through artificial insemination is needed. (Less)
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author
Darinder Magnusson, Annica
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Familjerätt
language
Swedish
id
1556910
date added to LUP
2010-03-08 15:55:20
date last changed
2010-03-08 15:55:20
@misc{1556910,
  abstract     = {The purpose of the study is to investigate how the legal parenthood is regulated in the law now in force. I focus on the establishing of paternity and motherhood as well as on how parenthood is regulated in the situation of an artificial insemination. The focus of my investigation is on the best interest of the child in question. I have also put the subject of parenthood in a historical context to get a comprehensive background and to understand why the legal regulation of parenthood looks like it does today. At present legal practice concerning the establishing of paternity, the husband in a marriage is presumed to be the father of the children of whom his wife gives birth. The presumption may be annulled under certain circumstances though, as stated by the law. It is however only the husband and the child who can commence an action in a paternity lawsuit. Another man who might believe that the child in fact is his, thus have no right to commence an action in a paternity lawsuit. If the mother is not married at the point of birth, paternity is instead determined through confirmation or verdict. According to the legal practice concerning the establishing of motherhood a woman who gives birth to a child is always presumed to be its mother. Due to this fact there was no legal regulation regarding motherhood in Swedish law for a long time. Ever since egg donations were made legal in Sweden, it has been necessary to legally regulate the question of motherhood in this special case. Thus, there is now a special legal regulation stating that it is the woman who gives birth to the child that is presumed to be its mother, and not the woman who donated the egg. Annulment of the presumption of motherhood is not regulated in Swedish law, and thus this situation must be managed through common legal practice. If the mother in question is married, paternity in the situation of an artificial insemination is determined through the presumption of paternity as stated previously. An equivalent regulation does not exist for the woman, who is the mother's registered partner. In SOU 2007:3 it is suggested that a presumption of parenthood, just like the presumption of paternity, should be practiced, thus automatically rendering the registered female partner of the mother the child's legal parent. A child conceived through artificial insemination in Sweden has a legal right to know the identity of both the egg and sperm donator. This is merely of interest however if the parents decide to inform the child that it was conceived though artificial insemination, which the parents have no legal obligation to actually do. Furthermore, investigations have shown that many children do not know that they were conceived through artificial insemination. After studying the presumption of paternity I have found it to contain numerous significant flaws, especially when it comes to the child's right to know its biological origin, but also concerning the child's right to a consistent parenthood. Lacking any better alternative and despite recent accomplishments in DNA technology as well as the fact that more people chose not to marry, it is still according to me a fairly good practice. An alternative to the presumption of paternity would be to have all men confirm paternity. It could possibly improve the child's right to a consistent relationship with the father since the man through an action has confirmed that it is his child. If the presumption of paternity should be considered being in the best interest of the child, I think that it is imperative to further develop the rights to commence action in paternal law cases. The right to commence action should to a larger extent consider the child's right to know its biological origin. I do not think that it is in the well being of the child to develop the presumption of paternity into a presumption of parenthood that would be applicable on the registered partner of the mother. The introduction of such a presumption would undoubtedly result in depriving the child of one of its genetic parents, which can not be considered as being in the best interest of the child. Instead, to further accentuate the child's need to know its biological origin, a legal obligation for the parents to inform the child that it has been conceived through artificial insemination is needed.},
  author       = {Darinder Magnusson, Annica},
  keyword      = {Familjerätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Fastställande av rättsligt föräldraskap},
  year         = {2008},
}