Surrogacy in the Netherlands and Europe is governed by national law, and the Dutch position is easily summarised: surrogacy itself is not a criminal offence, but there is no statutory surrogacy regime, commercial mediation and public advertising are prohibited under Dutch criminal law, and the woman who gives birth is the legal mother whatever the genetic position. Intended parents therefore acquire legal parenthood only afterwards, through the courts. Elsewhere in Europe the rules differ sharply from one country to the next, and a parentage established abroad is not automatically recognised at home.
This article sets out the Dutch framework as it stands, the route intended parents must follow to become legal parents, the reform bill that is before Parliament, and the cross-border problems that arise with surrogacy across Europe. For the domestic procedure in more detail, see our page on surrogacy agreements, and for the wider context our Dutch family law guide.
What Dutch law allows and what it prohibits
There is no Dutch Act that regulates surrogacy. What exists instead is a combination of the ordinary rules on parentage in Book 1 of the Burgerlijk Wetboek, a small number of criminal prohibitions aimed at the commercial side of the practice, and the policy of the hospitals that provide fertility treatment. The result is that an arrangement between people who know each other is lawful, while the market around it is closed off.
The criminal prohibitions are found in articles 151b and 151c of the Wetboek van Strafrecht. They make it an offence to act as an intermediary in surrogacy for profit and to publish or arrange the publication of advertisements offering or seeking a surrogate mother. In practice this means that you may ask a sister, a friend or another person you already know, but you may not place a request on a website or on social media, and you may not use a commercial agency. Payment beyond the reimbursement of pregnancy-related expenses falls on the wrong side of the same line.
Reimbursement that is genuinely tied to the pregnancy is accepted: medical costs not covered by insurance, maternity clothing, travel to appointments, loss of income for pregnancy-related absence, and the legal costs of the arrangement. What distinguishes this from a fee is documentation. Keep the receipts and pay against them, because a lump sum described as expenses is precisely what the prohibition is aimed at. A surrogate who is in employment keeps the ordinary statutory protections during pregnancy, including those against pregnancy-related discrimination at work.
Fertility clinics apply their own conditions on top of the law. High-technology surrogacy, in which an embryo created from the intended parents’ or donors’ gametes is transferred to the surrogate, is carried out in the Netherlands only in a limited number of hospitals and only where the parties know one another, where there is a medical indication, and where all those involved have been screened medically and psychologically and have had independent legal advice. Couples who assume that a willing surrogate is the only obstacle are often surprised by how much the clinic requires.
The four terms you will meet
Traditional surrogacy uses the surrogate’s own egg, so she is the genetic as well as the birth mother. Gestational surrogacy uses an embryo created from the intended parents’ or donors’ gametes, so the surrogate has no genetic link to the child; this is the form Dutch clinics work with. Altruistic surrogacy means the surrogate receives no more than her documented expenses. Commercial surrogacy means she receives a fee, and that is what Dutch law targets. Under Dutch parentage law the genetic position makes no difference to who the legal mother is at birth, so the traditional and gestational distinction matters medically and emotionally rather than for the legal starting point.
Who the legal parents are at birth
Article 1:198 of the Burgerlijk Wetboek states the rule that governs everything else: the mother of a child is the woman who gave birth to it. There is no exception for surrogacy and no relevance to the genetic origin of the egg. The surrogate mother is the legal mother from the moment of birth, she is entered as such in the register of births, and she holds parental authority.
The position of the father follows article 1:199. If the surrogate is married or in a registered partnership, her spouse or partner is by operation of law the legal father or the second legal parent of the child, again regardless of genetics. Only if the surrogate is unmarried can the intended father acknowledge the child (erkenning), and he needs her written consent to do so. Where the surrogate is married, the intended father cannot acknowledge the child at all until the existing legal parenthood has been set aside, which requires court proceedings.
The intended mother is in the weakest position of all. She cannot be registered at birth, she cannot acknowledge the child, and her genetic connection to the child, if there is one, gives her no legal parenthood. Her route runs exclusively through adoption. That asymmetry surprises many couples, and it is the single most important thing to understand before an arrangement is made rather than after the child has been born.
The marital status of the surrogate is therefore not a detail. An arrangement with an unmarried surrogate allows the intended father to acknowledge the child shortly after birth and reduces the number of steps considerably; an arrangement with a married surrogate means both her and her spouse’s legal parenthood must be dealt with first. This is a question to ask at the very beginning.
How intended parents become legal parents
Because the surrogacy agreement cannot itself transfer parenthood, the transfer happens through a sequence of decisions by the Child Protection Board (Raad voor de Kinderbescherming) and the court. The sequence is broadly as follows, although the details vary with the marital status of the surrogate and with whether one intended parent is already a legal parent.
The child is handed over to the intended parents after the birth with the surrogate’s consent. Where a child under six months of age is taken into care with a view to adoption and there is no existing legal family relationship, the consent of the Child Protection Board is required first; making that contact before the birth rather than after it is strongly advisable. The surrogate and, where relevant, her spouse are then relieved of parental authority by the court, and the intended parents are appointed as guardians so that they can take decisions about the child, arrange medical care, and deal with registration and travel documents.
Legal parenthood itself comes at the end, through adoption under articles 1:227 and 1:228 of the Civil Code. The court grants an adoption only if it is in the child’s best interests and if the child has nothing more to expect from its existing legal parents in their capacity as such. There are further statutory conditions, including a period during which the adopters have cared for and brought up the child. The Child Protection Board advises the court, and the surrogate must consent; her consent cannot validly be given before the birth. Our overview of adoption proceedings and of the legal requirements for adopting a minor sets out the criteria in more detail.
Two features of this route need to be stated plainly. It takes a considerable time, and during that time the child’s legal position is not the one the parties intended. And the surrogate can change her mind: she cannot be compelled to hand over the child or to consent to the adoption, because an agreement obliging her to do so is contrary to public policy and unenforceable. Intended parents who understand that from the outset choose their surrogate on the strength of the relationship rather than the strength of the contract.
What a surrogacy agreement can and cannot do
A written agreement remains worth making, provided nobody mistakes what it achieves. It cannot transfer parenthood, it cannot bind the surrogate to hand over the child, and it cannot be enforced against her by a court. What it can do is record the parties’ intentions clearly enough that a court, the Child Protection Board and the hospital can see that the arrangement was thought through, that consent was informed, and that no payment was made beyond documented expenses.
A serious agreement deals with the following.
- Who the parties are, how they know each other, and what has been agreed about contact with the child in the future.
- Which expenses will be reimbursed, how they are evidenced, and how payment is made.
- What has been agreed about the conduct of the pregnancy, medical decisions and prenatal testing, with express acknowledgement that decisions about her own body remain the surrogate’s alone.
- What happens in foreseeable but difficult scenarios: a multiple pregnancy, a serious foetal abnormality, a miscarriage, the death or separation of the intended parents.
- That each party has taken independent legal advice, and that the parties have been informed that the agreement is not enforceable.
Independent advice on both sides is not a formality here. An agreement drafted by the intended parents’ lawyer alone invites the later objection that the surrogate did not understand what she was agreeing to, and that objection surfaces at exactly the moment when the intended parents can least afford it. Our family law team regularly advises one side of such an arrangement while the other side instructs separate counsel.
The reform bill before Parliament
The bill Wet kind, draagmoederschap en afstamming, which would amend Books 1 and 10 of the Civil Code and other legislation, was submitted to the Tweede Kamer on 30 June 2023. It has not been adopted by either chamber and is still under consideration by the Tweede Kamer. Until it is passed and brought into force, the law described above continues to apply in full, and no assumption should be made about when or in what form the reform will take effect.
The bill would change the structure rather than the principle. It proposes a route in which the court approves a surrogacy arrangement before conception, on the basis of conditions including counselling for all parties, independent legal advice, medical and psychological screening, and a written agreement, after which the intended parents can be recorded as the legal parents from birth. That would remove the adoption stage and with it the period of legal uncertainty for the child. The prohibition on commercial surrogacy and on advertising would remain.
The bill also strengthens the child’s right to information about its origins, by providing for a register in which details of the surrogate mother, of any donor and of the circumstances of the birth are recorded and can be consulted by the child later in life. That is a response to the same concern that has driven Dutch policy on donor conception and on adoption: a child should not have to discover its origins by accident, and the records should exist while the people involved are still alive to be asked.
Alongside the domestic route, the bill addresses international surrogacy by setting conditions for the recognition of parentage established abroad. The direction of travel is towards recognising a relationship where the arrangement met comparable safeguards and refusing it where it did not, rather than towards a blanket rule either way.
Surrogacy elsewhere in Europe and cross-border recognition
There is no European surrogacy regime. Each state legislates for itself, and the positions range from a criminal prohibition on any form of surrogacy, through regimes that permit altruistic arrangements under judicial or administrative supervision, to states with no rule at all. No Hague Convention covers the recognition of parentage established through surrogacy, and the existing instruments on adoption and on child abduction were not designed for it. The result is that a legal parent in one European country may be a legal stranger in the next, which is the core of the cross-border problem.
The European Court of Human Rights has been the main source of order in this area. In Mennesson v France, decided on 26 June 2014, the Court held that a state’s refusal to recognise the legal relationship between a child born abroad through surrogacy and its genetic father breached the child’s right to respect for private life under article 8 of the European Convention on Human Rights. In its advisory opinion of 10 April 2019, delivered at the request of the French Court of Cassation under Protocol No. 16, the Court went further: where a child is born abroad through surrogacy and a legal relationship with the intended mother has been established in the state of birth, the child’s right to private life requires that domestic law offer a route to recognition of that relationship. The state is free to choose the route, and adoption is an acceptable one, provided it is available promptly and effectively.
What that case law does not do is create a right for intended parents to have a foreign arrangement recognised on their own terms. The right belongs to the child, the recognition may be indirect, and a state may still refuse to give effect to an arrangement that offends its public policy. Anyone relying on a foreign birth certificate as the end of the matter is relying on the wrong document.
The practical risks of international surrogacy
Intended parents resident in the Netherlands who arrange a surrogacy abroad face a set of problems that are practical long before they become legal. The first is the child’s travel document. A Dutch passport requires Dutch nationality, and Dutch nationality follows from legal parenthood under Dutch law; a foreign birth certificate naming the intended parents does not by itself establish either. Families have found themselves unable to leave the country of birth for months while that is resolved, and it should be planned for before departure rather than discovered at the airport.
The second is recognition of the foreign parentage in the Netherlands. Dutch private international law will not recognise a parentage that was established in a manner incompatible with Dutch public policy, and a commercial arrangement, an absence of any genetic link, or an inability to trace the surrogate’s informed consent all weigh against recognition. Where recognition is refused, the route back is the same domestic one: guardianship, then adoption, with the Child Protection Board advising the court and with the added difficulty that the surrogate is in another country and her consent must still be obtained.
The third risk is the one that is least discussed. Intercountry adoption cannot be used as a fallback. Since 21 May 2024 the Netherlands has accepted no new applications for intercountry adoption, and the system is being phased out over a period running beyond 2030. Intended parents who assume that a child born abroad can simply be adopted into the Netherlands through the established adoption channels are working from an outdated picture.
Finally, the Dutch criminal prohibitions do not stop at the border in the way people assume. Using a commercial agency, and paying a fee rather than expenses, is capable of having consequences in the Netherlands as well as affecting the willingness of a Dutch court to recognise or to complete the arrangement. Advice in both jurisdictions, obtained before any money changes hands, is the only sensible way to approach this.
What to do before you start
The order in which the steps are taken determines almost everything. Establish first whether a domestic arrangement is possible, since it is by far the simpler route: a surrogate you already know, an unmarried surrogate if the choice exists, a hospital that will treat you, and independent legal advice on both sides. Contact the Child Protection Board before the birth rather than after it, and set out the arrangement to them honestly; their advice to the court later is shaped by what they were told and when.
Put the agreement in writing knowing what it is for, keep every receipt for every expense, and never pay a lump sum. Take advice on parental authority and guardianship before the child is born, so that the applications are ready to be filed rather than drafted in the first exhausting weeks. Where the arrangement is international, obtain advice in the country of birth and in the Netherlands at the same time, and confirm the route to a travel document before treatment begins. Where the intended parents are separating, or where the child will move between countries, the rules on children across borders and on custody come into play as well, and they follow the child’s habitual residence rather than the parents’ intentions.
One further point of perspective. Surrogacy is a family arrangement carried out under the rules that apply to families, and money is what turns it into something the law will not support. The distinction the Dutch legislature draws between reimbursing what a pregnancy costs and paying for a pregnancy runs through every part of the framework, and arrangements fail on that point more often than on any other. The same care applies to related financial arrangements between the intended parents themselves, including child maintenance if their relationship later ends.
Law and More advises intended parents and surrogate mothers on surrogacy arrangements in the Netherlands and on the recognition of parentage established abroad: drafting and reviewing the agreement, dealing with the Child Protection Board, applications for parental authority and guardianship, adoption proceedings, and the nationality and travel questions that arise in international cases. If you are considering a surrogacy arrangement, take advice before conception rather than after birth; please contact us to discuss your position with our family lawyers.
Frequently asked questions
What are the primary legal requirements for surrogacy arrangements in the Netherlands?
The Netherlands permits surrogacy only under limited conditions. You can make a private arrangement with someone you know personally, such as a relative or friend. You cannot publicly advertise that you are looking for a surrogate mother. This restriction includes posts on social media platforms. The surrogate mother can receive reimbursement for expenses related to the pregnancy. However, commercial surrogacy arrangements remain illegal under articles 151b and 151c of the Criminal Code. Websites and individuals are prohibited from advertising surrogacy services. The law aims to prevent commercial exploitation whilst allowing altruistic arrangements between people with existing relationships.
How do surrogacy laws vary across different European countries?
European countries lack a unified approach to surrogacy regulation. The legal framework remains notably fragmented across the continent. Some countries have established clear legal frameworks that permit certain types of surrogacy. Many others either restrict the practice significantly or ban it entirely. These differences arise from varying ethical considerations, public policy positions, and cultural norms. You may find that neighbouring countries have completely opposite legal stances on surrogacy. Countries with permissive laws typically regulate only altruistic surrogacy. Most European nations prohibit commercial surrogacy arrangements.
Can intended parents obtain legal parenthood through surrogacy in the Netherlands?
The Netherlands currently lacks a comprehensive legal framework that secures legal parenthood for intended parents. This absence represents a key barrier to domestic surrogacy implementation. A draft proposal to regulate surrogate parenting has been put before Parliament. If passed, the Netherlands would become one of the first European countries with a complete legal framework for surrogacy. Under current conditions, you face uncertainty regarding the recognition of your parental rights. The legal process for establishing parenthood remains unclear and varies by circumstance. The proposed reforms aim to provide greater legal certainty for both surrogate mothers and intended parents. Until these reforms pass, you should seek specialist legal advice before entering a surrogacy arrangement.
What are the implications of the hague Convention on surrogacy agreements within Europe?
The Hague Convention does not specifically address surrogacy arrangements. This gap creates challenges for cross-border recognition of parentage established through surrogacy. You may encounter difficulties when attempting to register a child born through surrogacy in another country. Different European states maintain varying policies on recognising foreign surrogacy arrangements. Some countries refuse to recognise parentage established through surrogacy abroad, particularly when commercial surrogacy was involved. Others may recognise the arrangement but require additional legal procedures. The lack of international consensus means you must carefully research the laws of both the country where surrogacy takes place and your home country. You should verify that your home country will recognise the legal parentage before proceeding.
How does the legal process for surrogacy differ for international and domestic intended parents in Europe?
Domestic surrogacy arrangements face country-specific regulations that vary significantly across Europe. You must comply with the laws of your country of residence, which may permit, restrict, or prohibit surrogacy entirely. International surrogacy adds layers of complexity to the legal process. You must navigate the laws of both the country where the surrogacy takes place and your home country. Recognition of parentage established abroad remains a primary challenge. Your home country may not automatically recognise you as the legal parent, even if the country where surrogacy occurred does. Some European countries require adoption proceedings or court orders to establish legal parenthood. Others may refuse recognition entirely if the surrogacy arrangement violated their public policy principles. You should obtain legal advice in both jurisdictions before entering an international surrogacy arrangement. The process often requires extensive documentation and may involve immigration procedures for the child.
What are the rights and protections available to surrogate mothers in European countries?
Surrogate mothers’ rights vary considerably across European jurisdictions. Countries with regulated surrogacy frameworks typically provide specific protections and safeguards. In the Netherlands, surrogate mothers retain legal rights throughout the arrangement. They can receive reimbursement for pregnancy-related expenses. Many European countries prioritise the surrogate mother’s welfare and autonomy. Legal frameworks often require informed consent and prohibit coercion. Countries with altruistic surrogacy laws generally ensure that surrogate mothers cannot be financially exploited. Commercial arrangements that treat surrogacy as a transaction remain prohibited in most European nations. The surrogate mother typically maintains the right to make decisions about her medical care during pregnancy. She may also retain parental rights until legal parenthood transfers to the intended parents through proper legal procedures.
Looking for something else? Our index of Dutch family law guides lists everything we have written on this subject, ordered by topic.
