Danish couple sues appeals board after being deemed unfit parents due to psychiatric diagnoses

A landmark legal case began Monday at the court in Kolding, Denmark, after two couples sued the National Appeals Board, known as Ankestyrelsen, for alleged violations of the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities. The case was reported by DR.

Monica Falkenberg and her partner, along with a second couple, have repeatedly been denied fertility treatment after Ankestyrelsen ruled them unfit to be parents, citing their psychiatric diagnoses. The board’s decisions were made entirely on the basis of written records and historical documents, without any direct meetings with the couples.

“Their assessments have been made purely on the basis of written documents and historical papers. As people, we have grown. We have enormous resources. We have the love and the framework in place. We have everything one needs to care for a child,” Falkenberg told DR’s P1 Morgen programme.

Falkenberg is currently receiving early retirement benefits. As a young woman, she suffered from a kidney disease that led to a kidney transplant, and in 2012 she was diagnosed with OCD, panic disorder, and borderline personality disorder. She has not been a patient in psychiatric care since 2013. Her husband lives with PTSD following deployment as a soldier to Iraq and works in a subsidised employment arrangement known as a flex-job.

When the couple sought fertility treatment several years ago, Falkenberg was referred via her own doctor to a psychiatrist, who assessed that she no longer suffers from psychiatric conditions. The couple also has statements from two independent psychologists concluding they are not unfit to be parents. Despite this, Ankestyrelsen upheld its decision.

In its ruling, the board wrote that their difficulties “are described as lasting and continue to require their attention in daily life,” and noted that Falkenberg “does not appear to have undergone a new psychiatric assessment.”

The board’s decision has had far-reaching consequences for the couple. “We cannot even adopt. We are not allowed to become foster parents. We cannot even access private fertility treatment. Everything is locked,” Falkenberg said.

Their lawyer, Viktor Kieler Herskind of Pramming Advokater, argues that the rulings breach both human rights conventions. “You have a right to a family life, and you have a right not to be discriminated against on the basis of a psychiatric disability. When fertility treatment is available in Denmark, it must be equally available to all, regardless of disability,” he told P1 Morgen.

Herskind also challenged the logic of linking employment capacity to parental fitness. “Being assessed as unable to manage work must be entirely separate from whether one can care for children. Our capacity to provide care is not defined by our ability to be in employment,” he said.

Under Danish law, if a doctor at a fertility clinic has doubts about a couple’s parental capacity, the case is referred for a formal assessment. Region Syddanmark handles these assessments on behalf of all five Danish regions, based solely on written information gathered from sources including psychiatric services, the local municipality, and the couple’s own doctor. Couples who disagree with the outcome may appeal to Ankestyrelsen, which either upholds or overturns the decision.