CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 mars 2022

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text-align:justify; page-break-inside:avoid; page-break-after:avoid }     FIFTH SECTION CASE OF A.M. v. NORWAY (Application no. 30254/18)     JUDGMENT   Art 8 • Art 14 (+ Art 8) • Private life applicable • Lack of legal recognition of parenthood to intended mother with no biological ties to a child born through a gestational surrogacy arrangement abroad • Meticulous balancing exercise between all conflicting interests at stake, including general interests protected by ban on surrogacy • Margin of appreciation not overstepped • No issue of discrimination   STRASBOURG 24 March 2022   FINAL   24/06/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.M. v. Norway, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Mārtiņš Mits,   Lətif Hüseynov,   Lado Chanturia,   Ivana Jelić,   Arnfinn Bårdsen,   Mattias Guyomar, judges, and   Victor Soloveytchik, Section Registrar , Having regard to: the application (no.   30254/18) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Ms A.M. (“the applicant”), on 19 June 2018; the decision to give notice to the Norwegian Government (“the Government”) of the complaints concerning Articles 8 and 14 of the Convention; the decision not to have the applicant’s name disclosed; the parties’ observations; the written comments received from the AIRE Centre (Advice on Individual Rights in Europe), which had been granted leave to intervene as a third party in the proceedings in accordance with Article 36 § 2 of the Convention Having deliberated in private on 14 September 2021 and 1 February 2022, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The application concerns complaints under Articles 8 and 14 of the Convention relating to proceedings between the applicant and her ex-partner, and proceedings against relevant administrative decisions, concerning parental rights in respect of a child born by way of gestational surrogacy. THE FACTS 2.     The applicant was born in 1962 and lives in Oslo. She was represented before the Court by Mr K.S.S. Andresen, a lawyer practising in Oslo. 3.     The Government were represented by their Agent, Mr M. Emberland of the Attorney General’s Office (Civil Matters), assisted by Ms I. Hjort Kraby and Mr H. Vaaler, attorneys at the same office. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Background 5.     The applicant moved in with E.B. in 2002. After a while, they wanted to have a child and their attempts at conceiving naturally did not succeed, nor did several attempts at in vitro fertilisation or egg donation. In 2010 they were in contact with a company based in the United States of America with a view to trying to become parents through surrogacy. A first attempt with a potential surrogate mother did not succeed. 6 .     The relationship between the applicant and E.B. gradually deteriorated and in September 2012, E.B. moved out. The two nonetheless remained in contact about the surrogacy process in the United States and the applicant contacted a US-based law group with a view to making a new attempt at completing a pregnancy with the help of a surrogate mother. In that connection, the applicant and E.B. signed agreements regulating their relationship with the clinic and the biological mother. They also retained legal assistance from another US-based law group, the International Fertility Law Group (IFLG). 7 .     By early 2013 the relationship between the applicant and E.B. was definitely over. E.B. bought a new flat and started a relationship with a different partner. The applicant and E.B. still continued their surrogacy cooperation, and another attempt was carried out in March 2013 but was unsuccessful. 8.     In May 2013 E.B. had a new blood sample taken in connection with another planned attempt, and thereafter he signed an informed consent form for frozen embryo transfer, dated 28 June 2013. 9.     On 21 July 2013 a fertilised donor egg was successfully transferred to a surrogate mother and the parties subsequently received confirmation of the pregnancy in August 2013. 10.     The applicant and E.B. instructed the IFLG to make sure that the applicant was recognised as the child’s legal mother in the United States. This resulted in the lodging of an application before the District Court of Bexar County, Texas, which gave a ruling on 10 January 2014. The ruling, which became final and enforceable in Texas, recognised the surrogacy agreement as lawful under Texan law, and stated that the applicant was deemed to be the legal mother under Texan law. 11 .     The child (“X”) was born on 19 March 2014 in the United States. E.B.’s sperm had been implanted in an egg donated by an unknown woman. Another American woman gave birth to the child. The applicant was registered as X’s mother on the birth certificate, in line with the ruling from the District Court of Bexar County. 12 .     The applicant and E.B. each rented a flat in the USA following the birth. X stayed with the applicant while E.B. visited daily. No information has been provided as to on what basis X travelled and entered into Norway. Upon their entry there, X stayed with the applicant while E.B. visited daily. 13.     On 14 May 2014 the Norwegian Labour and Welfare Administration accepted E.B.’s acknowledgment of paternity of X pursuant to section 7 of the Children Act (see paragraph 94 below). There is no information provided to indicate that changes have been made to the US birth certificate (see paragraph 11 above). 14.     On 16 May 2014 the applicant and E.B., having been unable to agree on how to organise daily care and contact in respect of X, signed an agreement which stated that they had a shared responsibility for caring for and raising X, but that they disagreed on where he was to live until a shared arrangement (50/50) could be established and that they would seek advice from a third party to clarify and reach an agreement on this issue. 15 .     During the subsequent period, X was moved between the applicant and E.B. every day so that he was with each of them for an equal amount of time. This arrangement continued after he started kindergarten in 2015. 16.     In a letter of 27 May 2014 the Tax Directorate ( Skattedirektoratet ) stated that, in accordance with an agreement on parental responsibilities in respect of X entered into by the woman who had given birth to him and by E.B., the latter had been registered as having sole parental responsibilities. It was further emphasised that, whereas the birth certificate listed the applicant as X’s mother, section 2 of the Children Act (see paragraph 94 below) provided that the woman who had given birth to a child was to be regarded as the mother, and accordingly the applicant could not be registered in the National Population Register as X’s mother in the absence of a valid adoption of him. It was stated that until any such adoption, K.J. would be registered as mother. 17.     On 6 June 2014 E.B.’s mother sent a notification of concern about X ( bekymringsmelding ) to the child welfare services, which subsequently held several meetings with the applicant and E.B. 18 .     E.B.’s new partner became pregnant around the end of 2014 or the start of 2015. During that same period, the applicant and E.B. were advised by the child welfare services that the twenty-four-hour-cycle arrangement (see paragraph 15 above) was not in X’s best interests. The applicant and E.B. nevertheless continued the arrangement, and it appears from the record of a meeting with the child welfare services on 28 April 2015 that the child welfare services expressed a sceptical attitude about the arrangement. They raised the question of whether the arrangement was intended to continue until X began to show signs of not tolerating it, which could take the form of an attachment disorder. They moreover said that the arrangement had to be regarded as particularly stressful for X because he was starting kindergarten. The possibility of a different arrangement was discussed, and at the meeting the applicant and E.B. drew up a proposal for a new contact arrangement that they would be testing in practice, based on visits every other weekend and during forty-eight-hour periods. 19.     On 29 May 2015 a meeting was held between the child welfare services, the applicant, E.B. and E.B.’s new partner. The record of the meeting noted, among other things, that E.B. would prefer that X live permanently with him but that he would agree to the applicant having slightly more contact with X than would be normal in an arrangement of this kind. According to the record, the child welfare services stated that they saw it as unrealistic to achieve better cooperation between the applicant and E.B. as long as they were unable to agree on important issues concerning their rights in relation to X. 20.     The record of the meeting concluded by noting that the child welfare services expressed concern that X’s caregivers had been unable to agree on contact arrangements that were acceptable to both of them. The child welfare services said, moreover, that they expected the applicant and E.B. to come up with a solution shortly and that they needed to understand that they would not agree, but had to compromise, since they held such strongly diverging views on the contact arrangements. The child welfare services also said that concerns expressed by X’s kindergarten had to be taken seriously and meant that the applicant and E.B. could not put off the decision; it was hoped that they would reach an agreement. In the child welfare services’ view it would be naïve to think that letting time pass would lead to an agreement and they referred to the fact that X would become a big brother in August, which was a big transition for a small child; therefore, they expected the applicant and E.B. to have foreseeable arrangements in place before then. 21.     A new meeting was scheduled for two weeks later with a view to arriving at a new contact arrangement. The applicant and E.B. failed to reach an agreement and the applicant sought legal assistance. This led to correspondence which did not reduce the level of conflict or bring matters any closer to an agreement on X’s situation. 22.     In an email of 5 August 2015, E.B. sent the applicant a plan for the contact arrangements in respect of X, but no agreement was reached. 23.     On 12 August 2015 a situation arose when E.B. had thought that the parties were supposed to meet at the kindergarten at 9 a.m. in connection with X starting his period of adjustment to kindergarten, but the applicant arrived somewhat later, which led to an exchange of views by email. 24 .     On 14 August 2015 E.B. decided to cut off further contact between the applicant and X, and X since lived with E.B. The administrative proceedings concerning recognition of maternity or adoption 25 .     On 26 August 2015 the applicant applied to the Offices for Children, Youth and Family Affairs ( Barne-, ungdoms- og familieetaten ) for recognition of her maternity of X or, in the alternative, adoption. On 7   September 2015 the Offices for Children, Youth and Family Affairs sent the applicant a letter with information about the relevant rules and indicated that those rules did not allow her application to be granted. On 23 September 2015 the applicant replied that she upheld her application and argued that the provisions of domestic law ran counter to the Convention and the United Nations Convention on the Rights of the Child (UNCRC). 26.     On 1 October 2015 the Offices for Children, Youth and Family Affairs decided on the applicant’s application of 26 August 2015 (see paragraph 25 above). The application was dismissed. The temporary Surrogacy Act of 2013 (see paragraph 97 below) did not apply in the applicant’s case, since the time-limit for filing applications had lapsed. Nor did the provisions of the Adoption Act apply. A stepparent-adoption under section 5b of the Adoption Act could in any event not be carried out as child already had two parents, namely E.B., the biological father, and the woman who had given birth to X (see paragraph 95 below). The applicant had not applied for a normal adoption under Article 7 of the Adoption Act, which would entail that E.B. would lose his parenthood. 27 .     In a decision of 27 November 2015, on an appeal by the applicant, the Directorate for Children, Youth and Family Affairs ( Barne-, ungdoms- og familiedirektoratet ) found that the applicant’s application submitted to the Offices for Children, Youth and Family Affairs on 26 August 2015 (see paragraph 25 above) could not be approved and thus upheld the decision. It stated, among other things, that pursuant to section 7 of the Adoption Act (see paragraph 95 below), it was a condition for adoption that the persons with parental responsibilities in respect of the child in question consented to the adoption, and in the instant case, E.B. had not consented. In response to submissions filed by the applicant, the Directorate also stated that it did not find that the requirement of parental consent for adoption was in contravention of fundamental human rights or that the decision entailed unfair discrimination against the applicant. Request for interim measure against E.B. 28.     On 26 August 2015, the applicant had also applied to the Asker and Bærum District Court ( tingrett ) for an interim decision granting her rights to contact with X. 29.     On 22 September 2015 the Asker and Bærum District Court dismissed the applicant’s application for an interim decision granting her contact rights in respect of X. The applicant appealed against that decision but her appeal was dismissed by the Borgarting High Court ( lagmannsrett ) on 14   December   2015. A further appeal by the applicant to the Supreme Court ( Høyesterett ) was dismissed on 7 March 2016. The domestic proceedings The proceedings before the City Court 30 .     On 25 April 2016 the applicant applied to the Oslo City Court ( tingrett ) for a judgment declaring that E.B. and the Norwegian government were obliged to recognise her as X’s mother. In so far as the application was directed at the Government, she also argued that the decision given by the Directorate for Children, Youth and Family Affairs on 27 November 2015 (see paragraph 27 above) was invalid. In so far as the application was directed at E.B., she argued in the alternative that she had a right to contact with X. 31.     In a judgment of 8 November 2016, delivered after a hearing over three days at which seven witnesses, in addition to the applicant and E.B., gave evidence, the Oslo City Court stated at the outset that surrogacy was an arrangement whereby a woman gave birth to a child for another person or persons. In the case before it, a surrogate mother in the United States had become pregnant after sperm donated by E.B. had been used to fertilise an egg from an anonymous egg donor by means of in vitro fertilisation, and the embryo had then been implanted in the surrogate mother’s uterus. In such cases, the party that had no genetic or biological connection to the child was often referred to as the intended or social parent. 32.     The Oslo City Court further stated that the type of surrogacy at issue in the case before it was illegal in Norway. It was nonetheless a fact that some Norwegian nationals travelled to other countries to have a child through surrogacy, as E.B. and the applicant had done. The fact that surrogacy was not legal in Norway did not according to the City Court deny the child and the social parent the possibility of achieving a safe legal framework for their relationship. However, it was clear that complicated legal and practical issues could arise in some cases, for example concerning the establishment and transfer of parentage, parental responsibility, citizenship, issuing of passports and immigration. The fact that at least two countries’ legal systems were involved could give rise to conflict between the legal rules of different countries, which further complicated the matter. If a conflict arose between the biological parent and the intended parent before the intended parent’s legal relationship with the child had been established, the conflict became even more complex. 33.     The Oslo City Court went on to note that, in the case before it, E.B. and the applicant had completed a surrogacy process in the United States despite the fact that their relationship had ended by the time the embryo was implanted in the surrogate mother. The relationship between them had been strained throughout the pregnancy, and when X was born, they had failed to agree on how they were to resolve the fact that they did not live together and were no longer a couple. After X was born, they had not managed to agree on where his permanent home should be, or on the scope of the access arrangement. 34.     The principal issue in the case before the Oslo City Court was whether the applicant had a legal right to be recognised by the Norwegian State and E.B. as X’s legal mother, in the same way as if she had been his biological mother. The outcome of this assessment would be of great importance to X. Reference was made to the second and third paragraphs of Article 104 of the Constitution (see paragraph 93 below), which was said to be in accordance with Norway’s international obligations under the United Nations Convention on the Rights of the Child and the Convention. The City Court thus stated it had taken that provision into account as an overriding consideration in all aspects of its case processing, and that it followed from the City Court’s concluding remarks how it had taken the child’s best interests into consideration in its concrete assessment of the key disputed issues in the particular case before it. 35.     The Oslo City Court also noted that the case concerned matters of legal parentage status, and that public considerations applied. It had therefore based its decision on the fact that the dispute concerned a case where public considerations limited the parties’ rights of disposition pursuant to the Dispute Act.     That meant that the City Court had a special responsibility for elucidating the case and that it was only bound by the parties’ procedural actions insofar as they were compatible with public considerations. The City Court also remarked that the applicant’s claim in the case raised both procedural and substantive questions, which it would discuss both in relation to the State and in relation to E.B. Whether the applicant was entitled to be recognised as X’s mother 36.     Starting with the questions that arose in relation to the Children Act and the Adoption Act, the Oslo City Court stated that E.B. was X’s biological and legal father and had the sole parental responsibility for him. This was not disputed. 37.     Section 2 of the Children Act (see paragraph 94 below) stated that, under Norwegian law, the woman who had given birth to a child was regarded as that child’s mother. This was the American surrogate mother K.J. The applicant had no genetic or biological relationship with X and in principle no legal relationship with him under Norwegian law. 38.     There was no legal authority in the Children Act for a social mother in a surrogacy relationship to have legal maternity transferred from the biological mother to herself. The applicant’s desire to become X’s parent could, in principle and under prevailing law only be achieved through adoption, which was probably the most common procedure in cases where the biological parent and the social parent lived together and wished to raise the child together. Where no such agreement existed, permission for adoption could not be granted. The Oslo City Court referred at this point to section 7 of the Adoption Act (see paragraph 95 below). 39.     Given that E.B. did not consent to adoption, the applicant could not adopt X, and, in the Oslo City Court’s view, the general provision on consent set out in section 7 of the Adoption Act was not in contravention of overriding rules concerning the best interests of the child. It stated that, normally, it was seldom in the child’s best interests to let a person adopt the child against the will of the person with parental responsibility. This had also been discussed in a report on a proposed new act relating to adoption, where it was stated that the requirement of consent would be maintained, along with other conditions for adoption, including that the parties have a shared wish to raise the child together. It was also a fundamental condition for all adoptions that the adoption would serve the best interests of the child. The City Court considered that the rules that applied at the time and that were also proposed in the said report, were normally in the best interests of the child and not in violation of the Constitution or any international conventions by which Norway was bound. The requirement of consent for adoption could also be found in the legislation of most European countries. In conclusion thus far, the City Court could not see that the outcome under prevailing law or the proposals set out in the said report were in contravention of the best interests of the child in the specific dispute before it. 40.     Turning to the temporary Surrogacy Act (see paragraphs 97-97 below), the applicant had argued before the City Court that that act, or the considerations on which it had been based, had vested her with a legal right to have the maternity in respect of X transferred to her. The Government and E.B. had contested that argument. 41.     Initially on that point, the City Court referred to how the temporary Surrogacy Act, for a limited period, had allowed social parents the possibility of, on certain terms, establishing legal parentage on a par with the biological parent, so that the child no longer had any legal relationship with the surrogate mother. 42.     What had occasioned the temporary Surrogacy Act had partly been that some couples who had had a child with the help of a surrogate abroad had received incorrect or incomplete information from Norwegian authorities, and partly that some couples had not familiarised themselves properly with the applicable legislation. With the help of the temporary Surrogacy Act, children born into an unclear legal position had received legal recognition and regulation of the relationship between the social parent and the child. 43.     The Oslo City Court went on to state that the temporary Surrogacy Act had not provided for a legal right to be recognised as a legal parent. The transfer of parentage had been conditional on an assessment of whether the conditions of the temporary Surrogacy Act were met. It had followed from the first paragraph of section 2 of that Act that the social parent had been entitled to apply for parenthood (see paragraph 97 below). 44.     Furthermore, it had been expressly regulated in the temporary Surrogacy Act and clearly stated in its preparatory works that it was temporary. Section 5 had set out that it had entered into force immediately and was repealed on 31 December 2015. It also followed from section 4 that applications had had to be submitted by 1 January 2014 (see paragraph 97 below). 45.     Regarding the temporary Surrogacy Act’s relevance to the decision to be taken in the case before the Oslo City Court, that court considered it, in principle, sufficient to refer to the fact that the applicant had not submitted an application within the deadline. The City Court nonetheless added that it seemed unlikely that a claim from the applicant would have succeeded under the temporary Surrogacy Act. Its section 2 had required that applicants had to document that the child’s father and they had had a shared wish to raise the child together (see paragraph 97 below). At the time that the egg had been fertilised and the embryo implanted in the case before the City Court, the parties had no longer been in a relationship, and the applicant had known that E.B. had started or was in the process of starting a relationship with H. It was not obvious to the City Court that this had been a situation in which the conditions of the temporary Surrogacy Act would have been met. In the City Court’s view, it was more accurate to say that the parties had had a shared wish of becoming parents through surrogacy, but that they had not had a clear idea about how and under which circumstances the child would be raised, in a situation where their relationship had ended and E.B. was in a new relationship. According to the City Court, one could just as easily claim that the parties had had a shared wish of raising the child separately, not together. Section 1 of the temporary Surrogacy Act had stated that the main objective was the best interests of the child, and it was not a given that the public administration would see the transferring of parentage to the applicant under the circumstances in her case as a realisation of this objective. 46.     In conclusion under this point, the City Court mentioned that there was no basis for claiming that the uncertainty regarding prevailing law that had occasioned the temporary Surrogacy Act applied to the case before it. The applicant and E.B. were both lawyers, and the City Court assumed that they both knew that the Act would not be applicable to them. 47.     The applicant’s main claim lodged with the City Court was that the decision of 27 November 2015 by the Directorate for Children, Youth and Family Affairs (see paragraph 27 above) had been based on an incorrect application of the law. It followed from what the City Court had already stated it considered that the application of the law in the decision had been correct, and it referred to its preceding discussions. The City Court’s assessment of the question of discrimination 48.     Furthermore, the applicant had had argued that the decision constituted unfair discrimination. The Oslo City Court found that that argument clearly could not succeed either. As far as the City Court could see, the application had been treated in the same way as other applications for adoption. The fact that the outcome of the applicant’s case differed from cases considered under the temporary Surrogacy Act was in the City Court’s assessment obviously based on reasonable considerations. It was not unreasonable of the public administration to apply prevailing law. The City Court could not see any other reasons to deem the decision invalid, and referred in that context to the discussion below about the best interests of the child. 49.     The Oslo City Court went on to state that in the introduction to its judgment, it had referred to the general significance of taking the best interests of the child into consideration when making decisions that concern children. In its concluding part, the City Court would comment on the significance of taking the child’s best interests into consideration in the particular case before it. 50.     In the Oslo City Court’s view, the rules that governed the application of the law in the case before it, which were primarily section 2 of the Children Act (see paragraph 94 below), the provisions of the Adoption Act (see paragraph 95 below) and the Dispute Act (see paragraph 100 below), were not in themselves inconsistent with provisions with higher rank concerning the best interests of the child. The question was then whether the outcome that followed from prevailing law had to yield because the best interests of the child in the case before it indicated a different result. In the City Court’s view, this was not the situation at hand. 51 .     In that connection the Oslo City Court first stated that the best interests of the child was not an objective entity, and frequently not unambiguous. It was often based on more or less uncertain ideas about future development based on a past that was a matter of dispute. The parties typically had quite diverging views of what would serve the best interests of the child in a specific case, and there could be good child welfare arguments for different results. This was often the case in parental disputes concerning living and access arrangements, and it was then up to the courts to balance conflicting considerations against each other. In cases of such nature, the outcome was often the result of a specific assessment. It could not be ruled out that the best interests of the child was a decisive argument in cases that had a bearing on the relationship between parents and children. When, for example, a child had a long-standing attachment to the social parent, the child’s right to a family life, and the best interests of the child, could be the decisive factor. This had been the issue in the Court’s cases of Mennesson v. France (no. 65192/11, ECHR 2014 (extracts)) and Labassee v. France (no. 65941/11, 26 June 2014). In other respects, the judgments adopted in those cases were not relevant to the case before the City Court because they differed on significant points. The Oslo City Court also stated that a previous judgment from a Norwegian court (a judgment from the Gulating High Court given on 2 March 2009 in an unrelated case) differed from the case now before it on significant points, and was also not suited to provide guidance of importance to the application of the law in the case before it. The Court observes that the Borgarting High Court on appeal later gave a more detailed explanation as to why also that court considered that that previous judgment from the Gulating High Court could not provide guidance to the applicant’s case, including that it had been a matter of a couple married and living together when the child was born; the judgment had not been followed up in later cases, and legislation had since been enacted (see paragraph 71 below). 52.     The Oslo City Court went on to state that X was too young to form an informed opinion about what constituted his best interests. In the case before it, the City Court had been guided by the view that the outcome should contribute to reducing the risk that the choices E.B. and the applicant had already made on X’s behalf would cause him harm in the future. The City Court’s point of departure in that assessment was X’s situation at the time of its judgment. 53.     In that connection, it noted that the situation from shortly after X was born and up until August 2015 had entailed daily moves between E.B.’s and the applicant’s home. The level of conflict had been constant, and rising during the period, which did not make for a good care situation. The Oslo City Court endorsed the child welfare service’s assessments on this point. 54.     Furthermore, the Oslo City Court stated that, regardless of what the applicant and others could think about E.B.’s choice to cut off contact between the applicant and X in August 2015, it seemed as though X had been living in a safe, adequate environment since then, with E.B. as his father, H. as his stepmother, and with his half-sibling and other family members. 55 .     It seemed clear to the Oslo City Court that the applicant, considered in isolation, had everything necessary to offer X a good and safe relationship, and it was also clear to it that it could be difficult for X to find out that the applicant was his intended mother. In the City Court’s view, those were not sufficient grounds for taking the risk of going back to a situation characterised by conflict between E.B. and the applicant. There was good reason to assume that such an outcome would lead to a higher risk of role confusion and a conflict of loyalty for X as he would grow up. 56 .     Following an overall assessment, the Oslo City Court could not see that considerations of X’s best interests indicated a different result than what followed from prevailing law. The applicant’s claim for contact rights 57 .     As to the applicant’s alternative claim that she be given contact rights even in the event that she was not recognised as X’s mother, the Oslo City Court noted that granting such rights would require a formal legal basis, as a decision to that effect would interfere with the rights belonging to X as well as X’s father. There were no provisions in domestic law that gave a legal basis to grant contact rights to a person in the applicant’s position. While one could imagine situations where such a right could be established because it would be necessary to protect a child’s best interests, for example where a break-up happened after such a long time that the child’s attachment indicated that continued contact was necessary, the instant case was not of that type. The proceedings before the High Court 58 .     The applicant appealed against the City Court’s judgment. It reads in the appeal that the applicant agreed with the City Court that were she acknowledged as X’s mother, which was her principal claim, she would also thereby gain a right to contact. In addition, she lodged a separate claim that the courts declare that she held contact rights. Furthermore, she upheld the claim that she would have a right to contact regardless of the question of recognition as mother. 59.     The Borgarting High Court held a hearing over three days, at which six witnesses, in addition to the applicant and E.B., gave evidence.     In its judgment of 12 October 2017, the High Court dismissed the appeal. Whether the applicant was entitled to be recognised as X’s mother 60.     The Borgarting High Court stated at the outset that the case concerned the question of whether the applicant was entitled to be recognised as the mother of a child who was the result of an embryo created using sperm from E.B. and an egg donated by an unknown woman, which had then been implanted in the surrogate mother K.J. in accordance with a surrogacy agreement between K.J. and her husband J.J., and the applicant and E.B. 61.     Furthermore, the Borgarting High Court remarked that egg donation and the use of a surrogate mother was illegal in Norway. This was evident from the first paragraph of section 2-15 of the Biotechnology Act (see paragraph 96 below). The second paragraph of section 2 of the Children Act (see paragraph 94 below) clarified and supplemented the prohibition in the Biotechnology Act. This meant that domestic surrogacy agreements were invalid. In the case before the High Court, the child had been born to a surrogate mother in the United States based on a surrogacy agreement that the applicant and E.B. had entered into there. 62.     The Borgarting High Court noted that it followed directly from the first paragraph of section 2 of the Children Act (see paragraph 94 below) who the mother of a child was. That provision was based on a purely biological principle and gave decisive weight to the fact that the woman had given birth to the child. Reference was on this point made to a doctrinal work in which it was stated that the first paragraph of section 2 applied to all cases where the question of maternity was determined pursuant to Norwegian law. As regarded cases where the child was a result of assisted reproduction abroad using eggs from another woman, it had been stated in the said work that it was still the woman who had given birth to the child who was the child’s legal mother. The High Court further stated that the second paragraph of section 2 maintained the provision set out in the first paragraph concerning who was the child’s legal mother and in the doctrinal work it had been stated that that paragraph entailed that the other woman (i.e. the donor) could not make a claim for the child pursuant to the agreement. As to the case before it, the Borgarting High Court stated that it had been surrogate mother K.J. who had given birth to X and she was therefore registered as the child’s mother pursuant to the first paragraph of section 2 of the Children Act. 63.     The Borgarting High Court went on to note that, pursuant to section 3 of the Children Act (see paragraph 94 below), the man to whom the mother was married at the time of the child’s birth was to be regarded as the father of the child. According to the applicable law it was therefore K.J.’s husband, J.J., who was X’s father. However, section 7 of the Children Act contained provisions on the possibility of contesting paternity if another man declared paternity to the child. In the case before it, E.B.’s declaration of paternity had been approved by K.J. and J.J., and following a DNA analysis the Norwegian authorities had recognised E.B. as X’s father with sole parental responsibility. 64.     Under Norwegian law, maternity could also be established by granting an official permission for adoption (an adoption order). Adoption required in accordance with section 7 of the Adoption Act (see paragraph 95 below) the consent of the parent who had parental responsibility for the child. Section 5b of the Adoption Act, which concerned stepparent-adoption, also set out the condition that the person with parental responsibility for the child had to consent to adoption. 65 .     Furthermore, pursuant to the third paragraph of section 5b of the Adoption Act, a stepparent could, subject to the consent of his or her former spouse or cohabitant, adopt former stepchildren following a divorce or breakdown of the relationship with the child’s parent (see paragraph 95 below). That provision only applied when parentage had been established for one of the parents only, which meant that it was applicable in cases where the child had been conceived using sperm from an unknown donor. The provision did not apply in cases where the child had been born to a surrogate mother abroad and lived with his or her legal father. In such cases, parentage had already been established for both of the child’s parents – the legal father and the surrogate mother. 66.     The Borgarting High Court noted that in a Norwegian Official Report ((NOU) 2014: 9) on a proposed new act relating to adoption, a committee (the Adoption Act Committee) had proposed to expand the right to adopt stepchildren following the breakdown of a relationship to include cases where two parents had established parentage of the child. In the committee’s opinion, the arguments in favour of expanding the right to stepparent-adoption were also relevant in cases concerning adoption after surrogacy. The committee had therefore proposed to give the intended parent the same possibility as a stepparent to adopt a child following a breakdown of the relationship with the child’s biological parent. It had been proposed to include a separate provision on stepchild adoption in order to regulate the conditions for adoption in these cases. 67.     The committee’s proposal had been rejected, however. In that context, the Borgarting High Court referred to statements by the Ministry of Children and Equality to the effect that the proposal had raised conflicting considerations that had to be weighed against each other. The Ministry had taken note that, through its proposal, the Adoption Act Committee had waned to highlight the distinction from normal stepparent-adoption and set more narrow conditions for the use of stepparent-adoption following assisted reproduction. The Ministry considered that a separate provision on adoption could lead to greater predictability in such cases. Important considerations spoke against introducing such a provision, however. The use of surrogacy raised difficult questions, both ethical and legal ones. Enshrining such a provision in law could according to the Ministry send unfortunate signals and be perceived as legitimising surrogacy and forms of assisted reproduction that were prohibited in Norway. The Ministry had also noted that the Hague Conference on Private International Law was preparing rules for private international law and the legal status of children with connections to more than one state, including children born through international surrogacy. Norway was a member of the Hague Conference, and introducing legislation in the field before this work had been concluded would therefore in the Ministry’s assessment be unfortunate. In an evaluation of the Biotechnology Act of May 2015, the Norwegian Biotechnology Advisory Board had recommended a prohibition against commercial surrogacy. Moreover, the Ministry of Health and Care Services was working on a white paper evaluating the Biotechnology Act. For those reasons the Ministry of Children and Equality had decided not to pursue the Adoption Act Committee’s proposal for a separate provision on stepchild adoption in connection with surrogacy. 68.     Upon the above, the Borgarting High Court remarked that the legislature had thus considered whether the right to stepparent-adoption should be expanded to include cases of surrogacy, but had concluded that no such provision should be enshrined in Norwegian law. On that basis, the High Court concluded that, under Norwegian law, maternity could only be established by the woman giving birth to the child herself or by permission being granted for adoption. As to the case before it, the applicant had not given birth to X, nor had she been granted permission for adoption. 69 .     The Borgarting High Court added that the temporary Surrogacy Act of 8 March 2013 – which had by the time of its judgment been repealed – could not form a basis for recognising the applicant as the mother. It stated that, during a brief period, the temporary Surrogacy Act had provided for the possibility of transferring parentage on certain terms. Among other things, the applicants for such transfer had had to document in accordance with section 2 of the Act that the child’s father and the applicant had a shared wish to raise the child together (see paragraph 97 below). The High Court remarked that, in the case before it, the situation had not been that the applicant and E.B. were to raise the child together. The surrogacy agreement had been entered into after their relationship had ended, and the plan, even before the child was born, had been to live apart. Moreover, pursuant to section 4 of the temporary Surrogacy Act, an application for parentage had had to be submitted by 1 January 2014. X was born after that date. The High Court also endorsed the Oslo City Court’s assessment on this point, and could not see that the temporary Surrogacy Act could be given any weight in the present case. 70 .     The Borgarting High Court went on to note that the applicant had been designated as “the legal parent” in an order issued by a district court in Texas. She had argued that a provision of the Dispute Act had provided a legal basis for recognising her status as mother