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Statement on the Government proposal for a Parenthood Act (TAS 180/2021, issued on 6 May 2021)

The Ombudsman for Equality replied to the Ministry of Justice’s request for a statement from the viewpoint of its powers in the area of gender equality. 

According to the Ministry of Justice’s proposal, the amendment is mostly technical. In addition, it rectifies and clarifies certain issues and ambiguities that have arisen in connection with the application of the current Maternity Act and Paternity Act. 

Combining the Maternity and Paternity Acts into a Parenthood Act

The Ombudsman for Equality was in favour of combining the Maternity Act and Paternity Act into a single Parenthood Act. There are many common aspects to establishing maternity and paternity. Combining the Acts will make these provisions easier to apply. A common Act can also contribute to the appreciation of parenthood as equally important regardless of the parent’s gender. 

Clarifications to the legal protection of fathers

The Ombudsman for Equality noted that the proposal will improve the de facto status and legal protection of fathers by giving men who suspect that they could be the father of a child the right of action also if parenthood was established by virtue of an acknowledgment given before the child’s birth. Legal protection is also improved by the proposal that action to annul paternity could still be brought within one year of becoming aware of the grounds for bringing such action. 

Gender neutrality 

The Ombudsman for Equality commends the fact that the Parenthood Act and its rationales use gender-neutral language where possible without compromising the precision and understandability required of legislation. 

Gender-neutrality is appropriate in contexts where there is no need to highlight the differences in status between the genders. However, it is important that the use of gender-neutral language does not obscure actual differences between the genders, the diversity of genders, or the special circumstances of people belonging to gender minorities.

The parent's gender in sections 2, 3 and 4 of the proposal  

The text of section 2 of the Act does not tie motherhood to the parent's gender. The rationale for the section also states that the establishment of parenthood does not require the person who gave birth to the child to be female. 

Under section 3, paternity can be established by virtue of being married to the woman who gave birth to the child. Section 4 of the Act provides for the other situations in which parenthood can be established. 

An opportunity to use sperm whose donor has given his consent for establishing his paternity in assisted fertility treatments is proposed for female couples. In such cases, the donor would be established as the child’s father. This improves the ability of sperm donors, who are mainly men, to establish their paternity.

The text of section 4 does not tie paternity to the parent’s gender. However, the rationales restrict the right of trans women to establish their paternity according to the date on which their gender was recognised. The Ombudsman for Equality does not see acceptable grounds for this restriction. The Ombudsman for Equality proposed that the rationale for section 4 would state that establishing paternity does not require the father to be male. 

Population Information System entries

Recording the relationship between child and parent in the Population Information System can be problematic, especially with regard to the privacy of individuals who have had their gender recognised and respect for the gender identity of such individuals. The Ombudsman for Equality considers it important that parents who have had their gender recognised have the opportunity to obtain a parenthood entry matching their recognised gender. Population Information System entries can be reviewed in connection with the amendment of the Transsexuality Act.

Act on Assisted Fertility Treatments

In the opinion of the Ombudsman for Equality, it would be important to review the Act on Assisted Fertility Treatments in light of the special circumstances of gender minorities, in connection with the amendment of the Transsexuality Act at the latest. The Ombudsman for Equality has stated that individuals who have their gender corrected must have equal access to reproductive services such as the storage of gametes and assisted fertility treatments.