Surrogacy in the Netherlands and Europe: what is the legal position?

Surrogacy is not a criminal offence in the Netherlands, but there is no statutory surrogacy regime: commercial mediation and advertising are prohibited, and the woman who gives birth is always the legal mother. Intended parents therefore only become legal parents afterwards, through the court, usually by adoption; elsewhere in Europe the rules differ sharply, and a parentage established abroad is not automatically recognised in the Netherlands.

This article explains what Dutch law allows, how intended parents become legal parents, the reform bill before parliament and the risks of surrogacy abroad. For more detail see our pages on surrogacy agreements and surrogacy across Europe.

Is surrogacy allowed in the Netherlands?

Yes, an altruistic arrangement between people who know each other is lawful. Under Articles 151b and 151c of the Dutch Criminal Code (Wetboek van Strafrecht) it is an offence to mediate in surrogacy for profit and to advertise for or as a surrogate mother.

In practice you may ask a sister or friend, but you may not post a request online or on social media, or use a commercial agency. The surrogate may be reimbursed for documented pregnancy-related costs: uninsured medical costs, maternity clothing, travel, loss of income and legal costs. A lump sum described as “expenses” is exactly what the prohibitions target.

A surrogate in employment keeps the ordinary protection during pregnancy, including against pregnancy discrimination at work.

What do the hospitals require?

Gestational (high-tech) surrogacy, with an embryo from the intended parents’ or donors’ gametes, is only carried out in a few Dutch hospitals. They require a medical indication, parties who already know each other, medical and psychological screening and independent legal advice.

Traditional surrogacy uses the surrogate’s own egg. Under Dutch parentage law the genetic link makes no difference to who is the legal mother at birth.

Who are the legal parents at birth?

Under Article 1:198 of the Dutch Civil Code (BW) the mother is the woman who gave birth to the child. The surrogate is the legal mother, is registered as such and holds parental authority.

The second parent follows from Article 1:199 BW. If the surrogate is married or in a registered partnership, her spouse or partner is automatically the second legal parent. Only if she is unmarried can the intended father acknowledge the child (erkenning), with her written consent.

The intended mother cannot be registered at birth or acknowledge the child, even if she is the genetic mother. Her only route is adoption. The marital status of the surrogate is therefore one of the first questions to ask.

How do intended parents become the legal parents?

The surrogacy agreement cannot transfer parenthood. That happens through decisions of the Child Protection Board (Raad voor de Kinderbescherming) and the court, in three steps.

• Care: if a child under six months is taken into care with a view to adoption, the Child Protection Board must first give consent. Contact the Board before the birth.
• Authority: the court relieves the surrogate (and her spouse) of parental authority and appoints the intended parents as guardians, so they can decide on medical care, registration and travel documents.
• Adoption: the court grants adoption under Articles 1:227 and 1:228 BW if it is in the child’s best interests and the statutory conditions are met, including a period of care by the adopters. Read more on adoption proceedings.

The surrogate can change her mind. She cannot be forced to hand over the child or consent to adoption, because an agreement that obliges her to do so is contrary to public policy and cannot be enforced.

What can a surrogacy agreement do?

A written agreement cannot transfer parenthood or be enforced against the surrogate. It does show the court, the Child Protection Board and the hospital that consent was informed and that only documented expenses were paid.

A good agreement covers who the parties are and the future contact with the child, which expenses are reimbursed and how, medical decisions (which remain the surrogate’s), difficult scenarios such as a multiple pregnancy or separation of the intended parents, and confirmation that each party had independent legal advice.

What will the reform bill change?

The bill Wet kind, draagmoederschap en afstamming (Kamerstuk 36390) was submitted to the House of Representatives (Tweede Kamer) on 30 June 2023. In October 2026 it is still before the House and has not been adopted; until it enters into force, the current rules apply in full.

The bill proposes that a court approves a surrogacy arrangement before conception, after counselling, legal advice, screening and a written agreement. The intended parents would then be the legal parents from birth, without adoption. The ban on commercial surrogacy and advertising would remain, and a register would record the child’s origins.

How is surrogacy regulated elsewhere in Europe?

There is no European surrogacy regime. Some states prohibit all surrogacy, others allow altruistic surrogacy under supervision, and some have no rules at all; no Hague Convention covers recognition of surrogacy parentage.

The European Court of Human Rights has set minimum standards under Article 8 of the European Convention on Human Rights. In Mennesson v France (26 June 2014) it held that refusing to recognise the relationship between a child born abroad by surrogacy and its genetic father violated the child’s right to private life.

In its advisory opinion of 10 April 2019 the Court added that domestic law must also offer a route to recognise the relationship with the intended mother, for example adoption, provided it is quick and effective. The right belongs to the child; it does not oblige a state to accept every foreign arrangement.

What are the risks of surrogacy abroad?

A foreign birth certificate naming the intended parents is not the end of the matter. Recognition in the Netherlands, Dutch nationality and a travel document all depend on Dutch rules.

• Travel document: a Dutch passport requires Dutch nationality, which follows from legal parenthood under Dutch law. Families have been stuck abroad for months.
• Recognition: Dutch private international law refuses recognition of parentage established contrary to Dutch public policy, for example after a commercial arrangement or without traceable consent of the surrogate.
• Fallback: if recognition is refused, the route is guardianship and adoption in the Netherlands, while the surrogate’s consent must still be obtained abroad. Intercountry adoption is being phased out in the Netherlands and is no fallback.
• Criminal law: using a commercial agency or paying a fee can have consequences in the Netherlands and affect the court’s willingness to complete the arrangement.

Obtain advice in both countries before any money changes hands. See also our page on cross-border legal issues.

What should you check as intended parents?

• Whether the surrogate is married or unmarried, because that determines the number of legal steps.
• Whether a Dutch hospital will accept your arrangement.
• That you contact the Child Protection Board before the birth.
• That you pay only documented expenses, never a lump sum.
• For an arrangement abroad: how the child will get a travel document and Dutch nationality.

What should you check as a surrogate mother?

• That you have your own independent lawyer, not the intended parents’ lawyer.
• That the agreement confirms medical decisions during pregnancy remain yours.
• Which expenses are reimbursed and how they are documented.
• What happens to parental authority if the intended parents separate or withdraw.
• Your rights as an employee during pregnancy and maternity leave.

What can we do for you with surrogacy?

Our family lawyers advise intended parents or the surrogate mother, with the other side instructing separate counsel. Background is in our Dutch family law guide and the index of family law guides.

• We draft or review the surrogacy agreement and the expense arrangement.
• We prepare the contact with the Child Protection Board before the birth.
• We file the applications for parental authority, guardianship and adoption.
• We assess whether a foreign parentage can be recognised in the Netherlands.
• We coordinate with lawyers in the country of birth on nationality and travel documents.

Summary

• Altruistic surrogacy is lawful in the Netherlands; commercial mediation and advertising are criminal offences.
• The surrogate is the legal mother at birth; intended parents become legal parents through guardianship and adoption.
• The surrogacy agreement cannot be enforced against the surrogate.
• The reform bill 36390 is still before the House of Representatives and not in force.
• Foreign surrogacy parentage is not automatically recognised; get advice in both countries first.

Frequently asked questions