The purpose of this letter is to provide information about Norwegian legislation in this field, as differences between Norwegian and other countries’ legislation can give rise to unforeseen legal consequences for children who are born as a result of such agreements.
Agreements on surrogacy are not binding under Norwegian law. Such agreements are not recognised under Norwegian law as a basis for establishing maternity or paternity. Egg donation is prohibited and is a criminal offence in Norway. The prohibition means that gestational surrogacy, i.e. using an egg from a woman other than the one who will carry the child to term, may not be carried out in Norway.
Under Norwegian law, it is only the woman who has given birth to a child who can be its legal mother. A surrogate mother is therefore considered to be the child’s legal mother, even in cases where another woman has donated the egg. This means that the surrogate mother is registered as the child’s mother in all Norwegian official documents, and that she may be granted right of access to the child and may have a maintenance obligation towards the child. The child will have the right to contact the surrogate mother, and will under Norwegian law have the right to inherit her.
For children born outside Norway, paternity can be established according to Norwegian law, provided that either the mother or the father is resident in Norway. The spouse of the surrogate mother will be considered to be the father of the child, irrespective of any biological bond. If the mother is unmarried, paternity may be established by acknowledgement or by a judgment. Acknowledgement of paternity requires the participation and consent of the mother and, if applicable, of her spouse.
Paternity established abroad according to the law of a foreign country may be recognised in Norway if the paternity established abroad is deemed acceptable as a substitute for a Norwegian decision. In cases where Norwegian paternity cannot be established, the child will not be granted Norwegian citizenship.
In cases where legal parenthood cannot be established or recognised under Norwegian law, a person who wishes to establish legal parenthood to a child may only do so by adoption. In cases involving an agreement on surrogacy, an adoption process will be complicated and time-consuming, and will depend, among other things, on the legislation of the country where the child was born. In such cases it is therefore highly uncertain whether an adoption application may be considered under Norwegian legislation, and if so, whether the application may be granted.
On the basis of the above, the Norwegian authorities advise persons resident in Norway against entering into agreements with surrogate mothers abroad. If any such agreement is concluded, this can put the child in question in a situation where it does not obtain any legal relationship with a Norwegian parent and does therefore not obtain Norwegian citizenship or any other right to reside in Norway.