A woman consented to her female cohabitant undergoing medically assisted procreation (MAP) services with donor sperm performed in private. Before the birth of the child the couple married and the birthmother’s female partner then obtained legal recognition for her reassigned gender as a man. When the child subsequently was born, the birthmother’s (now) husband was registered as the father of the child in accordance with the rule on paternity presumption (he who is married to the birthmother is the father of the child).

After the couple divorced a couple of years later, the birthmother brought legal proceedings against her ex-husband challenging the paternity presumption on the grounds that he as a matter of fact was not the father of the child and that the consent to the MAP was given by him when indeed he was legally not her husband but her female cohabitant. Since the wording of the paternity presumption rule clearly requires that consent to the MAP is given by the mother’s husband or male cohabitant, the presumption rule could not apply, she argued.

Both the first instance court and the Court of Appeal (one dissenting judge), however, came to the conclusion that the most reasonable thing to do in the present case was to apply the paternity presumption rule mutatis mutandis also when the consent was given by the husband in his previous legal capacity as a woman. The Supreme Court has decided not to grant permission to review the judgment, which therefore has become final.

Hans Ytterberg

The full text of the judgment (in Swedish only)