For many prospective parents, pregnancy may not occur naturally. Beyond adoption, surrogacy is another option to consider. Currently, surrogacy is not formally regulated by law in the Netherlands, which creates uncertainty regarding the legal status of both the intended parents and the surrogate mother.
In recent years, there has been a growing demand for surrogacy services in the Netherlands, especially as the lack of formal regulation and legal clarity presents significant challenges for those hoping to become parents through surrogacy.
Questions often arise, such as: What happens if the surrogate mother decides to keep the child after birth? Or if the intended parents choose not to take the child into their family? Do intended parents automatically become the legal parents at birth? This article addresses these concerns and more. Additionally, it discusses the draft ‘Child, Surrogacy, and Parentage Bill.’
Is Surrogacy Allowed in the Netherlands?
In practice, there are two forms of surrogacy permitted in the Netherlands: traditional surrogacy and gestational surrogacy. These two forms of surrogacy each have their own procedures and implications, reflecting the different approaches and genetic relationships involved.
Traditional Surrogacy
Traditional surrogacy involves a woman acting as the surrogate mother, using her own egg, which makes her both the genetic mother and the legal birth giver under Dutch law. The pregnancy is initiated through insemination with sperm from the intended father or a donor, or through natural means. There are no specific legal requirements for traditional surrogacy, and medical assistance is not necessary.
Gestational Surrogacy
Gestational surrogacy requires medical intervention. IVF is used to fertilize an egg outside the body, and the resulting embryo is implanted in the surrogate mother’s uterus, making the surrogate mother pregnant with the intended parents’ child through this process. In most cases, the surrogate mother is not genetically related to the child. Due to the medical procedures involved, strict conditions apply in the Netherlands for this type of surrogacy.
These conditions include that both intended parents must be genetically related to the child, there must be a medical necessity for the intended mother, the intended parents must find the surrogate mother themselves, and age limits apply (egg donors up to 43 years old and surrogate mothers up to 45 years old).
Restrictions on Promoting (Commercial) Surrogacy
Although both traditional and gestational surrogacy are allowed, the promotion of commercial surrogacy is prohibited under the Penal Code. This means that advertising to encourage surrogacy arrangements is forbidden. Intended parents and surrogate mothers are not allowed to seek each other publicly, including via social media. Furthermore, women who act as surrogate mothers are subject to strict legal restrictions regarding compensation and public promotion of surrogacy. Surrogate mothers may only receive reimbursement for medical and related expenses, not financial compensation.
Surrogacy Agreements
When opting for surrogacy, it is essential to clearly outline agreements, typically through a surrogacy contract. These contracts are informal and can cover various arrangements between the surrogate mother and intended parents. However, such contracts are often difficult to enforce legally, as they may be considered contrary to public morals. Therefore, voluntary cooperation between all parties throughout the surrogacy process is crucial.
Since the surrogate mother cannot be compelled to relinquish the child after birth, and intended parents cannot be forced to accept the child, many intended parents choose to use a surrogate mother abroad. Engaging a surrogate mother abroad introduces additional legal and practical complications, such as issues with legal recognition, nationality, and citizenship for the child, as well as challenges arising from the current Dutch legal stance and ongoing legislative efforts. For more information, see our article on international surrogacy.
Legal Parenthood
Due to the absence of specific surrogacy legislation, intended parents do not automatically acquire legal parenthood at the child’s birth. Dutch parentage law is based on the principle that the birth mother is the legal mother, including in surrogacy cases. If the surrogate mother is married at the time of birth, her husband or partner may be recognized as the legal father at birth, depending on their marital status.
Consequently, the following process is typically followed: after the birth and official registration, and with the consent of the Child Care and Protection Board, the child is integrated into the intended parents’ family. The court procedure may involve a formal request to transfer custody from the surrogate mother (and possibly her partner or husband) to the intended parents. The court then removes parental authority from the surrogate mother (and possibly her spouse), and appoints the intended parents as guardians.
Once the intended parents have cared for and raised the child for one year, they may jointly adopt the child. Alternatively, the intended father can become the legal father through a legal procedure, such as acknowledgment or establishing paternity, if the surrogate mother is unmarried or if the husband’s parenthood is denied. The intended mother can adopt the child after one year of care and upbringing.
Registration and Documentation
Registration and documentation are essential steps in the surrogacy process, particularly when it comes to establishing legal parenthood and safeguarding the rights of the child. In the Netherlands, the process of registering a child born through surrogacy can be especially complex if the child is born abroad. Dutch authorities require a valid birth certificate for registration, which must be properly authenticated and translated into Dutch. However, complications often arise when a foreign birth certificate does not list a birth mother, as is common in surrogacy arrangements in other countries.
For intended parents, navigating the legal requirements for registering a foreign birth certificate in the Netherlands can be a challenging and time-consuming process. In many cases, it is necessary to obtain a declaration of Dutch nationality for the child, which may require cooperation from the surrogate mother and the authorities in the country where the child was born. The Research and Data Centre (WODC) has conducted research highlighting the need for clearer regulations and guidelines to support intended parents and children born through surrogacy, especially when dealing with foreign birth certificates and cross-border surrogacy processes.
Recent legal developments have brought some clarity to this area. For example, the Hague Court has ruled that Dutch registrars cannot automatically refuse the registration of foreign birth certificates that do not mention a birth mother, provided that the surrogacy process meets certain conditions. These include compliance with the legal procedures of the country where the child was born, ethical and transparent completion of the surrogacy process, and confirmation that the surrogate mother has no parental interest in the child. Such rulings help intended parents who have pursued surrogacy abroad, but the process remains complex and requires careful attention to legal details.
The Dutch government has recognized these challenges and has proposed new legislation to regulate surrogacy, including the registration and documentation process. The aim is to create a more streamlined and transparent system for establishing legal parenthood, while also protecting the rights of surrogate mothers and children. Researchers and organizations, such as Leiden University, have emphasized the importance of clear rules and procedures to ensure the well-being and legal security of all parties involved in surrogacy arrangements.
Commercial surrogacy, which is prohibited in the Netherlands, adds another layer of complexity. Intended parents who engage in commercial surrogacy abroad may face significant obstacles when registering the child’s birth certificate and establishing legal parenthood in the Netherlands. Dutch law strictly limits payments to surrogate mothers to reasonable expenses, and any arrangement involving additional financial compensation may be considered contrary to Dutch law, potentially complicating the registration process.
The use of IVF treatment, high-tech surrogacy, and other assisted reproductive technologies can also impact the registration and documentation process. Each surrogacy process may have specific requirements regarding documentation, legal parentage, and the recognition of foreign birth certificates. Intended parents are strongly advised to seek professional legal advice to ensure compliance with all relevant Dutch and international laws and to protect the rights and well-being of the child, the surrogate mother, and themselves. By taking these steps, intended parents can help ensure a smooth and successful surrogacy journey, regardless of where the child is born.
Proposed Legislation
The draft ‘Child, Surrogacy and Parentage Bill’ aims to simplify the process of obtaining parenthood. It introduces the possibility of granting parenthood to intended parents through a specific legal procedure. The bill creates an exception to the rule that the birth mother is always the legal mother by allowing parenthood to be granted after surrogacy. This can be arranged before conception through a special court petition involving the surrogate mother and intended parents. A surrogacy agreement must be submitted and reviewed by the court under legal conditions. These include that all parties are of legal age, have consented to counseling, and that at least one intended parent is genetically related to the child.
If the court approves the surrogacy arrangement, the intended parents are recognized as the legal parents at birth and are listed on the child’s birth certificate as a result of the granting parenthood procedure. In accordance with the UN Convention on the Rights of the Child, the child has the right to know their parentage. Therefore, a registry will be established to record biological and legal parentage information when they differ. The draft bill also provides an exemption to the ban on surrogacy mediation if conducted by an independent legal entity appointed by the Minister.
Conclusion
While non-commercial traditional and gestational surrogacy are permitted in the Netherlands, the lack of specific regulations can result in complex situations. The surrogacy process relies heavily on voluntary cooperation despite contracts, and intended parents do not automatically obtain legal parenthood at birth. The proposed ‘Child, Surrogacy and Parentage Bill’ seeks to clarify the legal framework for all parties involved, although parliamentary consideration is expected to occur in a future term.
If you are considering starting a surrogacy journey as an intended parent or surrogate mother and wish to formalize your legal position, or need assistance obtaining legal parenthood at birth, please contact us. Our family law specialists are ready to help.