Pregnancy, unfortunately, is not a matter of course for every parent with a desire to have children. In addition to the possibility of adoption, surrogacy could be an option for a intended parent. At the moment, surrogacy is not regulated by law in the Netherlands, which makes the legal status of both the intended parents and the surrogate mother unclear. For example, what if the surrogate mother wants to keep the child after the birth or the intended parents do not want to take the child into their family? And do you also automatically become the legal parent of the child at birth? This article will answer these questions and many others for you. In addition, the draft ‘Child, surrogacy and parentage Bill’ is discussed.
Practice offers two forms of surrogacy, both of which are permitted in the Netherlands. These forms are traditional and gestational surrogacy.
With traditional surrogacy, the surrogate mother’s own egg is used. This results in the fact that with traditional surrogacy, the surrogate mother is always the genetic mother. The pregnancy is brought about by insemination with sperm of the desired father or a donor (or brought about naturally). There are no special legal requirements for performing traditional surrogacy. Moreover, no medical assistance is required.
Medical assistance, on the other hand, is necessary in the case of gestational surrogacy. In this case, ectopic fertilisation is first performed by means of IVF. Subsequently, the fertilised embryo is placed in the uterus of the surrogate mother, as a result of which in most cases it is not the genetic mother of the child. Because of the necessary medical intervention, strict requirements apply to this form of surrogacy in the Netherlands. These include that both intended parents are genetically related to the child, that there is a medical necessity for the intended mother, that the intended parents themselves find a surrogate mother and that both women fall within the age limits (up to 43 years for the egg donor and up to 45 years for the surrogate mother).
The fact that both traditional and gestational surrogacy are permitted in the Netherlands does not mean that surrogacy is always permitted. Indeed, the Penal Code stipulates that the promotion of (commercial) surrogacy is prohibited. This means that no websites may advertise to stimulate supply and demand around surrogacy. In addition, intended parents are not allowed to look for a surrogate mother in public, e.g. via social media. This also applies vice versa: a surrogate mother is not allowed to look for intended parents in public. In addition, surrogate mothers may not receive any financial compensation, except for the (medical) costs they incur.
If surrogacy is chosen, it is very important to make clear agreements. Usually, this is done by drawing up a surrogacy contract. This is a form-free contract, so all kinds of agreements can be made for both the surrogate mother and the intended parents. In practice, such a contract is difficult to enforce legally, because it is seen as contrary to morality. For this reason, the voluntary cooperation of both surrogate and intended parents throughout the surrogacy process is of great importance. A surrogate mother cannot be obliged to give up the child after birth and the intended parents cannot be obliged to take the child into their family. Because of this problem, intended parents increasingly choose to look for a surrogate mother abroad. This causes problems in practice. We would like to refer you to our article on international surrogacy.
Due to the lack of a specific legal regulation for surrogacy, you as an intended parent do not automatically become a legal parent at the birth of the child. This is because Dutch parentage law is based on the principle that the birth mother is always the legal mother of the child, including in the case of surrogacy. If the surrogate mother is married at the time of birth, the surrogate mother’s partner is automatically recognised as the parent.
That is why the following procedure applies in practice. After the birth and the (legitimate) declaration thereof, the child is – with the consent of the Child Care and Protection Board – integrated into the family of the intended parents. The judge removes the surrogate mother (and possibly also her spouse) from the parental authority, after which the intended parents are appointed as guardians. After the intended parents have cared for and raised the child for one year, it is possible to adopt the child together. Another possibility is that the intended father acknowledges the child or has his paternity legally established (in case the surrogate mother is unmarried or the parenthood of her husband is denied). The intended mother can then adopt the child after one year of raising and caring for the child.
The draft ‘Child, surrogacy and parentage Bill’ aims to simplify the above procedure for obtaining parenthood. Based on this, an exception is included to the rule that the birth mother is always a legal mother, namely by also granting parenthood after surrogacy. This can be arranged before conception with a special petition procedure by the surrogate mother and intended parents. A surrogacy agreement must be submitted, which will be examined by the court in the light of the legal conditions. These include: all parties have the age of consent and agree to undertake counselling and that furthermore one of the intended parents is genetically related to the child.
If the court approves the surrogacy programme, the intended parents become parents at the time of birth of the child and are therefore listed as such on the child’s birth certificate. Under the UN Convention on the Rights of the Child, a child has the right to have knowledge of his or her own parentage. For this reason, a register is set up in which information relating to biological and legal parentage is kept if it differs from each other. Finally, the draft bill provides for an exception to the ban on surrogacy mediation if this is carried out by an independent legal entity appointed by the Minister.
Although (non-commercial traditional and gestational) surrogacy is permitted in the Netherlands, in the absence of specific regulations it can lead to a problematic process. During the surrogacy process, the parties involved (despite a surrogacy contract) are dependent on each other’s voluntary cooperation. In addition, it is not automatically the case that intended parents obtain legal parenthood over the child at birth. The draft Bill named ‘Child, Surrogacy and Parentage’ tries to clarify the legal process for all parties involved by providing legal rules for surrogacy. However, parliamentary consideration of this will in all likelihood only take place in a subsequent reign.
Are you planning to start a surrogacy programme as an intended parent or surrogate mother and would you like to further regulate your legal position contractually? Or do you need help in obtaining legal parenthood at the birth of the child? Then please contact Law & More. Our lawyers are specialised in family law and are happy to be of service.