EFTA Court says Iceland cannot refuse registration in surrogacy case

Iceland cannot refuse to register children born through surrogacy in the United States after a Swedish court has recognised their fathers, the EFTA Court has concluded, mbl.is reports. A refusal could breach rights to free movement under the EEA Agreement.

The opinion responds to a request from an Icelandic district court. Although surrogacy is prohibited under Icelandic law, the court said that did not allow the authorities to reject the registration in this case.

The case concerns two married men who live in Sweden. One is a citizen of Iceland, Sweden and the United States; the other is a French and US citizen. While living in the United States, they arranged for embryos to be created using eggs from one donor and sperm from each man. Two women agreed to carry one child each, and both children were born in 2024.

Before the births, a California court ruled that the men were the children’s sole legal fathers and had full custody. Swedish district court rulings later recognised the US decisions. The children hold Swedish and US citizenship, and an application for French citizenship was being processed, according to court documents.

The fathers asked Iceland’s National Registry to register the children in 2024. The registry initially rejected the applications, citing Icelandic rules on maternity. After a DNA test, it accepted the paternity registration for the child whose father is Icelandic and registered that child’s Icelandic citizenship.

The men also asked whether the children could be confirmed as adopted abroad. A district commissioner said it did not consider them to have been adopted. The fathers then asked whether they could adopt their own children in Iceland, a process that might require the family to move there. The commissioner said it could not determine in advance whether that would be possible.