If you arrange a surrogacy (draagmoederschap) abroad, the parenthood recognised in the country of birth is not automatically recognised in the Netherlands. Dutch law treats the woman who gives birth as the legal mother, so you should settle recognition, nationality and travel documents before the birth, not at a Dutch embassy afterwards.
Who is the legal parent under Dutch law?
The woman who gives birth is the child’s legal mother under Article 1:198 of the Dutch Civil Code (BW). That applies whether or not she is genetically related to the child, and whatever a foreign birth certificate says.
If she is married or in a registered partnership, her spouse or partner is in principle the second legal parent. For the intended parents there is then no legal tie with the child at birth.
Is surrogacy itself lawful in the Netherlands?
Yes, but commercial mediation is not. Under Article 151b(1) of the Dutch Criminal Code (Sr), anyone who professionally brings about arrangements with a surrogate mother risks up to one year in prison or a fine of the fourth category.
Under Article 151b(2) Sr it is also an offence to publicly offer such services, or to announce publicly that a woman is available as a surrogate or that one is being sought, with or without profit. An arrangement abroad involving an agency or payments beyond the surrogate’s expenses therefore needs careful assessment before you proceed.
Will a foreign birth certificate or court order be recognised?
That depends on the case. Recognition is governed by the private international law rules in Book 10 BW, and the municipality or, in the end, the court tests it against Dutch public policy.
Relevant factors are whether the surrogate gave free and informed consent, whether you have a genetic link with the child, whether a court in the country of birth reviewed the arrangement, and whether the child’s interests were weighed. A foreign certificate that does not name the woman who gave birth can block registration in the Personal Records Database (BRP).
If recognition is refused, you follow the Dutch route: acknowledgement by the intended father where possible, then adoption by the other intended parent. Adoption requires that the adoptive parent has cared for the child for at least one year (Article 1:228 BW), and a joint adoption requires at least three years of living together (Article 1:227 BW).
How do you get the child to the Netherlands?
Plan the travel documents before the birth. A child whose Dutch parentage is not established may have no claim to Dutch nationality and therefore no Dutch passport.
Whether the child can travel then depends on the nationality rules of the country of birth and on the documents that country issues; some countries refuse travel documents to a child they regard as foreign. Intended parents have been unable to leave the country of birth for months while this was resolved.
What should you check as intended parents?
- Does the agency or clinic abroad offer mediation that would be an offence under Article 151b Sr in the Netherlands?
- How is parentage established in the country of birth: by birth certificate, court order or both?
- Does the foreign document name the woman who gave birth?
- Is at least one of you genetically related to the child, so that acknowledgement is possible?
- Which travel document will the child receive, from which authority, and will the Dutch authorities accept it?
- Is the agreement with the surrogate recorded in writing, including what happens if either side changes their mind?
What can we do for you with international surrogacy?
Our family lawyers advise intended parents before and after a birth abroad.
- We assess the planned arrangement against Article 151b Sr before you sign.
- We review how the foreign birth certificate or court order will be assessed in the Netherlands.
- We prepare the registration of the foreign certificate with the municipality and, if it is refused, the court petition.
- We arrange acknowledgement, the ending of parental authority and the adoption petition.
Summary
- The woman who gives birth is the legal mother under Article 1:198 BW, regardless of a genetic link or foreign certificate.
- Commercial mediation and publicly offering or seeking a surrogate are offences under Article 151b Sr; private arrangements reimbursing expenses are not.
- Recognition of a foreign certificate or court order is assessed case by case against Dutch public policy.
- Without recognised Dutch parentage, your child may not get a Dutch passport; arrange this before the birth.
Frequently asked questions
Can we pay a surrogate abroad?
Reimbursing the surrogate’s expenses is not an offence. Payment through a commercial agency, or payment well beyond expenses, raises questions under Article 151b Sr and can make recognition in the Netherlands harder. We assess this per arrangement and per country.
Do we need to adopt our own child?
Only if the foreign parentage decision is not recognised and acknowledgement does not give both of you legal parenthood. Adoption then requires at least one year of care and, for a joint adoption, at least three years of living together.
Can our child travel to the Netherlands straight after the birth?
Only if the country of birth issues a travel document or Dutch parentage, and with it Dutch nationality, has been established. Check this before the birth.
