Improved family law on home insemination and trans parents. On February 10 Folketinget – the Danish parliament – passed a bill improving the rights of rainbow families in Denmark:
- Persons using home insemination will be subject to the particular rules on recognition for rainbow families, which could previously be applied only when using fertility clinics.
- Trans persons will be registered as parents in the proper gender, e.g., a trans man will be registered as a father, even if he gave birth to the child.
- In the Code of Judicial Procedure, paragraphs dealing with a “mother” are changed to be dealing with “the one who gave birth to the child,” i.e., getting rid of gendered terms.
- The Name Act was corrected to be in accordance with the 2013 act on legal gender recognition.
- The appendix in the Central Person Registry Act is amended to reflect more family types. Some administrative procedures, including digital services, are defined based on the appendix.
Recognition of parenthood
The Danish legislation on the recognition of parenthood has changed over time. In the latter half of the 20th century, it was asymmetric in relation to married vs. unmarried parents. But half of the children being born in Denmark were born to unmarried parents. In 2002 the Children’s Act was thoroughly revised to put married and unmarried parents on an equal footing. The pater est-rule of Roman law still applied, i.e., the husband of a woman giving birth is considered the father of the child. Rules on starting a paternity case apply. If the parents are unmarried, they will need to fill out a form stating they are the parents and will be responsible and take care of the child. Thus, it became easy to register the legal parents of the child, married or not.
This did not apply to rainbow families, though. Denmark was, nevertheless, at the forefront of rainbow family inclusion: since 1999, a child could have two legal parents of the same sex, either two men or two women. It was by means of second-parent adoption within a registered partnership. But why should we adopt our own children when other parents were recognized under the Children’s Act?
In 2012 the present author proposed an amendment to the scheme of the Children’s Act: to allow the parties in a rainbow family to declare their roles before conceiving the child. It was at a hearing arranged by the Health and Prevention Committee of the Parliament. The following year the Government wanted to amend the Children’s Act to include rainbow families, but they did not get it right. They were about to propose an amendment being a generalisation of the pater est-rule: if the woman giving birth to the child were married, her spouse would automatically be recognized as a parent. This, however, was absolutely unacceptable as that would marginalize gay fathers.
A last-moment intervention got the draft withdrawn just before going into the public hearing. Instead, the department wrote a new draft along the lines of the presentation the previous year. Thus, the draft and the subsequent bill sported a solution, where the woman giving birth is the legal mother, whereas her female partner (married or unmarried) and a man supplying the sperm would agree if the partner or the man should be the other legal parent. This agreement is made before conceiving. There was an inconvenience, though: the rules only applied when conceiving in a fertility clinic, i.e., they did not apply for home insemination.
Interestingly, the rainbow families got more options than other families. For opposite-sex couples, the pater-est-rule applies, and thus, a married woman cannot have a child with another man where this other man should be the father (this would require a paternity case). The Government explained this asymmetry with the fact, that rainbow families are different from other families, and the law should reflect that.
The reason to go down Memory Lane is that the same thing happened this time. For some time, a cross-ministerial workgroup analysed the legislation to identify shortcomings concerning LGBTI persons. One of the things we had pointed out was this exclusion of home insemination. The Government created an initiative to correct that. Unfortunately, they got it wrong, and unfortunately, we didn’t get the opportunity to stop it before it came into the public hearing. Again, the proposal generalised the pater est-rule, and the gay fathers were marginalised. Consequently, LGBT komiteen wasted the draft in the hearing asking the Government to withdraw most of it. The Government rewrote the essential parts of the proposal to accommodate our criticism, and the bill became balanced, putting the female partner of the person giving birth and the person providing the sperm on an equal footing. Still, only one of them can be a legal parent in addition to the person giving birth. But we did get the home insemination rainbow families under the Children’s Act, which is highly satisfying.
Even though the term co-mother was defined in the Children’s Act in 2012 the appendix of the Central Person Registry Act was not updated correspondingly. The current bill introduced the term in the appendix. Note, a similar term, co-father, was never introduced. The reason is that the person giving birth is always a legal parent. Thus, the Children’s Act cannot accommodate the male partner of a father unless either pregnancy donation (surrogacy) is allowed or more than two legal parents are recognised.
In 2013 Denmark introduced self-determination of legal gender. Previously, a trans person had to have gender-affirming surgery before being able to change the gender in the person registry. Now it is a simple procedure where you simply file your request to the registry. Other parts of the legislation were not changed at the same time.
Thus, a topic that the cross-ministerial workgroup identified was the unsatisfying situation of trans persons becoming parents. Because the family law generally used gendered terms, it was often unclear if a person should be recognised as a mother or a father. As for the person giving birth, the legal role was, by definition, a mother. The Government wanted to change this, but they didn’t want to rewrite the entire Children’s Act. Consequently, they proposed an amendment saying that trans persons are recognised as parents according to their legal gender with rights and responsibilities according to the gender before reassignment. Thus, a trans man giving birth is recognised as a father, but he will, for instance, get parental leave as a mother, i.e., e.g., four weeks before the expected time of birth.
This shortcut in relation to writing the law (i.e., keeping gendered terms but codifying that for trans persons, the text should be interpreted differently) was flawed, though. The asymmetry in family law regarding rainbow families – as mentioned above – makes this interpretation ambiguous. As a consequence of the criticism of LGBT komiteen the Government amended the bill to address this ambiguity.
Thus, the bill ensures the proper registration of trans parents, which is highly satisfying. However, LGBT komiteen would have preferred the Children’s Act being rewritten with non-gendered terms. In our reply to the public hearing, we added an appendix with a complete revision of the Children’s Act into non-gendered language. As it turns out, it simplifies the whole thing significantly. But the Government did not want to do a thorough revision. In another appendix, we showed how the gender-neutral act could be easily amended to accommodate more than two legal parents.
The Code of Judicial Procedure contains a few paragraphs referring to the mother of a child. As a consequence of the amendment of the Children’s Act recognising trans parents these paragraphs were revised to refer to the person giving birth to the child.
A long-standing inconsistency in the Name Act
In 2013 when self-determined legal gender was introduced, the Name Act was not revised correspondingly. Thus, this still referred to old procedures and even still used the obsolete term transsexual. It was not a very important issue, as probably few people would use these provisions, which addressed changing name to the opposite sex, for people who did not change legal gender. But evidently, the legislation had to become consistent.
In 2019 the Government made an attempt to revise the paragraph. However, they only proposed to change the word transsexual. LGBT komiteen pointed out that substantial changes would be needed to make it comply with the provisions regarding legal gender recognition. The Government withdrew the proposal.
The current bill gets it right, though, and finally, the Name Act is consistent with the gender recognition act of 2013.