Commission on Paternity NOU 2009: 5

On 28 March 2008, the Norwegian Government appointed a Commission to propose amendments to the Children Act concerning establishment and change of paternity and maternity, etc. The purpose is to adapt the Act to the major social and technological developments that have taken place with regard to developments in family patterns, the possibility of assisted fertilisation and establishment of paternity with a high degree of certainty.

The principle of paternal affiliation by presumption is fundamental to the establishment of paternity. The Commission proposes that this principle be maintained so that the husband of the mother is automatically established as a child’s father. Many children are thus ensured a secure social and legal framework from the start of their lives.

Since the principle of paternal affiliation by presumption functions well, the Commission has considered whether it should also apply to cohabitants, but does not recommend such a statutory amendment. Here, the Commission refer particularly to practical problems associated with the provision of documentary evidence that the cohabitation actually exists and to the fact that cohabitation is less legally binding than marriage. For similar reasons, the Commission recommends repeal of the rule allowing a cohabiting father to establish paternity without the consent of the mother.

The Commission wishes to raise the standing of the current voluntary recognition of paternity and emphasise the emotional aspect of childbirth and parenthood. Fathers should therefore declare rather than acknowledge paternity, and the Commission propose that the terminology of the Act be amended. Both for the parents and for maternity facilities, it would be most practical if paternity were as far as possible established prior to the birth of a child.

It is therefore proposed that the recently adopted amendments to the Children Act concerning co-maternity be upheld, so that two women are granted equal rights as parents when one of them gives birth following assisted fertilisation with the other’s consent.

The Commission propose that the current statutory provision concerning maternity be upheld so that the woman who gives birth to a child is the child’s legal mother. According to this proposal, maternity established outside Norway will automatically be recognised in Norway without any special authorisation if the woman who gave birth to the child is deemed to be the child’s mother pursuant to the law of the country where the child was born.

The use of methods of assisted fertilisation in other countries that are not permitted in Norway may give rise to legal issues, inter alia, in connection with recognition of paternity or maternity established in other countries. It lies outside the scope of the Commission’s terms of reference to address the question of which methods of assisted fertilisation shall be permitted in Norway. In its proposals, it has been the aim of the Commission that the legal parenthood in respect of children should be established as early as possible, while ensuring provisions to protect against child trafficking.

Norwegian law should continue to apply to children born in Norway, regardless of where they were conceived.

The Commission has considered what rules should apply in connection with establishment of paternity, maternity and co-maternity for children born outside Norway as a result of assisted fertilisation. The Commission does not find it correct to adapt Norwegian statutory provisions concerning parenthood in order to enable residents of Norway more easily to make use of facilities available abroad that are not permitted in Norway. The interests of the children brought into the world in this way should nevertheless be safeguarded as well as possible, and the Commission therefore proposes wider access to adoption of stepchildren.

If a person or couple residing in Norway enters into an agreement with a surrogate mother outside Norway, transfer of maternity should only be possible by means of formal adoption.

The Commission finds that, primarily out of regard for the children but also out of regard for the parents, clear legislation should be drafted enabling children to obtain a legally stable attachment to two parents as early as possible in the child’s life. Adoption of stepchildren is perceived as a sound means of transferring maternity in cases where the consent of all affected parties is obtained, while assessing whether the transfer of maternity will be of benefit to the child. The Commission therefore recommends that the current legal provisions be upheld, so that maternity may only be changed by means of adoption. It is proposed that this be clarified in the form of an explicit statutory provision.

Even if it is established by law that transfer of maternity in other ways than by means of adoption is not recognised in Norway, the Commission nevertheless proposes a limited exception for families who move to Norway, where maternity was transferred by a means other than adoption before the family became resident in Norway.

In cases where a man residing in Norway becomes the father of a child born outside Norway, the Commission recommends that current law in this area be upheld, so that a foreign establishment of paternity must be subject to recognition in order to apply in Norway. Paternity that follows directly from the law of the other country shall automatically be recognised.

The Children Act has provisions concerning co-maternity that apply when a woman married to another woman gives birth to a child conceived by means of assisted fertilisation. In Norway, semen from a known donor is used. If artificial insemination is carried out abroad, the donor must be known in order that co-maternity may be established pursuant to the Children Act. If the donor is unknown, the mother’s female spouse must adopt the child as a stepchild. The requirement regarding a known donor involves discrimination between children born in lesbian relationships and children born in heterosexual relationships, and the Commission therefore recommends that the requirement regarding a known donor in connection with assisted fertilisation outside Norway be repealed out of regard for equal treatment of the children.

The Commission proposes that a separate provision be added to the Children Act concerning jurisdiction in maternity cases in order to prescribe by law when maternity cases may be dealt with in Norway.

The Commission finds that the current provision of the Children Act concerning choice of law functions well, and finds no reason to consider amendments in this area.

The Commission proposes that it shall be possible to adopt a deceased partner’s or spouse’s children if the child has no other legal parent. The intention of this proposal is to ensure that children who lose their only legal parent may be adopted by their step-parent without losing their legal attachment to the family of their original parent or, for example, losing financial benefits deriving from the deceased. Correspondingly, it is proposed that a divorced partner or spouse shall also be able to adopt the children of a previous partner or spouse when both parties agree.

The Commission has considered the extent of the authorities’ obligation to establish parenthood, and recommends that the current provisions prescribing that the authorities shall be obliged to establish paternity or co-maternity, when this does not follow from marriage or a declaration, be upheld. It is proposed that this obligation be extended to include children born outside Norway. It is further proposed that the authorities shall be obliged to ascertain maternity in cases where the child has been registered at the National Population Register without stating the identity of the mother. Since maternity is a consequence of the fact that the woman has given birth to the child, the responsibility of the maintenance enforcement agency as regards ascertaining maternity will primarily involve obtaining information concerning the identity of the woman who gave birth to the child.

The Commission proposes reintroduction of time limits for the parents’ and third parties’ entitlement to institute legal proceedings concerning change of paternity. The child should be able to institute proceedings within three years after learning that another person may be his or her father. Such time limit shall however not begin to run until the child reaches the age of majority (18 years). Both parents should be able to institute legal proceedings concerning paternity within one year after learning that the paternity may have been wrongly established. A man who believes himself to be the father of a child should be able to institute legal proceedings within one year after learning that he may be the father, but only until the child is three years of age.

The Commission propose that parents who lose parental rights, for example a father who is deprived of paternity by a court judgment, shall be given an opportunity to institute legal proceedings in order to determine their right of access to the child. The court shall decide the case on the basis of the best interests of the child. In cases where the parents have not adopted stepchildren and where the child has only one legal parent, it shall be possible to institute legal proceedings to claim the right of access.

Corresponding provisions and time limits shall apply to established co-maternity where appropriate.

The Commission further propose a new provision giving the child a right to know the identity of his or her biological father without this entailing a change of paternity. In this connection, the child may demand that the Norwegian Labour and Welfare Service or the court shall order the necessary taking of samples and DNA analysis.

The Commission has considered establishment and change of paternity in cases where the father or possible father is deceased or has disappeared. The authorities shall also be responsible for establishing paternity after the death of a possible father, and the right to institute legal proceeding concerning change of paternity shall apply regardless of whether the father is alive or dead. The Commission further propose a clarification of the right of the court to obtain samples and DNA analyses previously carried out in relation to the deceased. It shall be possible to obtain samples and DNA analyses from all types of register and storage locations for biological material, such as DNA records for use in criminal investigations and biobanks for treatment or research purposes.

It is proposed that paternity testing be made available at the foetal stage. DNA analysis with a view to establishing paternity should only be permitted after expiry of the time limit for self-determined abortion. The right to abortion on social grounds in the second trimester of pregnancy may nevertheless be granted following consideration by a local Abortion Committee.

The Commission proposes certain simplifications in the Children Act, inter alia, repeal of the arrangement involving paternity writs, adaptation of the rules to DNA analyses and simplification of the procedural rules for cases concerning parenthood. It is further proposed that the Children Act’s specific regulation of the submission of evidence concerning sexual relations of the parties be repealed.

The Commission has considered whether domestic or international actors other than the Institute of Forensic Medicine should perform DNA analyses in paternity cases. The Commission find that the current arrangement whereby the Institute of Forensic Medicine is the sole provider of DNA analyses in paternity cases functions well as regards both quality and practical execution of the tests, and therefore find that this should only be changed if weighty grounds so indicate. If the Institute should be organised in such a way that it could no longer be regarded as a state body, cf. the rules concerning public procurements, the Commission assumes that the service would be subject to competitive tendering.

The Commission finds that the proposals submitted in the report have no significant financial or administrative consequences for the public authorities.