Surrogacy in the Netherlands: rules, agreements and legal parenthood

Surrogacy is allowed in the Netherlands, but there is no specific legislation for it, and that shapes everything. The woman who gives birth is always the legal mother, and a surrogacy agreement cannot change that; the intended parents only become the child’s legal parents after the birth, through court proceedings and adoption.

What is prohibited is commercial mediation in surrogacy and publicly offering or seeking a surrogate mother. Below we explain the two forms of surrogacy, the status of a surrogacy agreement, how intended parents obtain legal parenthood and what may change. For arrangements made abroad, read our separate article on international surrogacy.

Which forms of surrogacy are possible in the Netherlands?

There are two forms: traditional surrogacy, in which the surrogate mother’s own egg is used, and gestational surrogacy, in which an embryo created through IVF is placed in her womb. Both are allowed, but gestational surrogacy is subject to strict medical conditions.

Traditional surrogacy

In traditional surrogacy the surrogate mother is also the genetic mother of the child. The pregnancy results from insemination with the sperm of the intended father or a donor.

No specific legal requirements apply, and medical assistance is not always necessary. For the child’s legal position, however, the same rules apply as in any other case: the surrogate mother is the legal mother, and if she is married or in a registered partnership, her spouse or partner is in principle the second legal parent.

Gestational surrogacy

In gestational surrogacy the embryo is created from the egg and sperm of the intended parents through IVF and placed in the surrogate mother’s womb. The surrogate mother then carries a child to which she is usually not genetically related.

Because this requires a fertility treatment, Dutch hospitals only offer it under strict conditions set out in medical guidelines. In outline, both intended parents must be genetically related to the child, there must be a medical reason why the intended mother cannot carry a pregnancy herself, the intended parents must find a surrogate mother themselves, and age limits apply. Only a small number of clinics offer this treatment, and they carry out their own screening and counselling of everyone involved.

What is prohibited?

Commercial mediation is a criminal offence: anyone who professionally brings intended parents and surrogate mothers together commits an offence under Article 151b(1) of the Dutch Criminal Code (Sr), punishable by 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 make public that a woman is available as a surrogate mother or that one is being sought.

In practice this means that intended parents and surrogate mothers may not look for each other through public advertisements or social media. Many intended parents therefore find a surrogate mother within their own circle of family or friends. Dutch law does not set a statutory amount that a surrogate mother may receive. In practice only reasonable expenses are reimbursed, such as medical costs and loss of income, and payments beyond that can complicate the court proceedings that follow the birth.

Is a surrogacy agreement binding?

No, not in the sense that it can be enforced. The surrogate mother cannot be forced to hand over the child, and the intended parents cannot be forced to accept the child.

An agreement about handing over a child is likely to be considered contrary to public morals, and a court will not enforce it. A written agreement makes clear what everyone expects, for example on medical decisions during the pregnancy, the reimbursement of costs, contact after the birth and what happens if the child is born with a disability. The whole process still rests on voluntary cooperation.

How do intended parents become the legal parents?

Only after the birth, through a combination of steps. In most cases the surrogate mother is first relieved of parental authority, the intended parents become the child’s guardians, and after a period of care they adopt the child.

Dutch parentage law starts from the principle that the woman who gives birth is the child’s mother (Article 1:198 of the Dutch Civil Code, BW). If the surrogate mother is married or in a registered partnership, her spouse or partner is in principle the child’s other parent. The intended parents therefore have no legal relationship with the child at birth.

Step 1: the child moves to the intended parents

After the birth, the child is registered with the municipality with the surrogate mother as legal mother. If the intended parents want to take a very young child into their home with a view to adoption, they need prior consent from the Child Care and Protection Board (Raad voor de Kinderbescherming).

The Board investigates the situation and advises. Without that consent, taking the child in can have serious consequences, including for the later adoption. Contact the Board well before the birth.

Step 2: parental authority and guardianship

At the request of the parties, the court can end the parental authority of the surrogate mother, and of her spouse if she is married. The court then appoints the intended parents as the child’s guardians.

From that moment the intended parents can take the everyday decisions about the child, such as medical care, day care and travel. They are not yet the legal parents, however: there is no family law relationship with the child yet, for example for inheritance or nationality.

Step 3: acknowledgement or adoption

If the surrogate mother is not married, the intended father can acknowledge the child with her consent and thus become the legal father. The intended mother, or the intended father’s male partner, can then adopt the child as the parent’s partner.

If the surrogate mother is married, her spouse is in principle the legal parent. That parenthood first has to be denied before the intended father can acknowledge the child, or the intended parents adopt the child together. For adoption, the intended parents must in principle have cared for and raised the child for at least one year, and for a joint adoption they must have lived together for at least three years before the request (Articles 1:227 and 1:228 BW). The court only grants the adoption if it is clearly in the child’s interest and the surrogate mother no longer has a role as a parent. The whole process therefore easily takes more than a year after the birth.

What should you check as intended parents?

• Have you found a surrogate mother without public advertisements or a commercial agency, as Article 151b Sr requires?
• Have you asked the Child Care and Protection Board for consent before the child moves in with you?
• Is the surrogate mother married or in a registered partnership, so that her spouse’s parenthood must first be dealt with?
• Have you lived together for at least three years, as required for joint adoption under Article 1:227 BW?
• Are payments to the surrogate mother limited to documented expenses?

What should you check as a surrogate mother?

• Do you understand that you are the legal mother at birth and that no agreement can oblige you to hand over the child?
• Have you and your partner received independent counselling before the pregnancy?
• Does the written agreement cover medical decisions, expenses, contact after the birth and what happens if the child is born with a disability?
• Do you agree to the court ending your parental authority after the birth?

What if the child was born abroad?

Then the question is whether the Netherlands recognises the foreign birth certificate or court decision naming the intended parents. A foreign certificate is not registered automatically in the Personal Records Database (BRP): the municipality, and in the end the court, assesses whether recognition conflicts with Dutch public policy. We discuss this in our article on international surrogacy.

Will the law on surrogacy change?

A bill on children, surrogacy and parentage (Wetsvoorstel Kind, draagmoederschap en afstamming) has been prepared, but it has not entered into force. Until it does, the route described above applies.

The bill would allow intended parents to ask the court, before the pregnancy, to approve a surrogacy agreement. If the court does so and the conditions are met, the intended parents would be the legal parents from birth. Conditions in the bill include that all parties are adults, have received counselling and that at least one intended parent is genetically related to the child. The bill also provides for a register of the child’s origins, because under the UN Convention on the Rights of the Child a child has the right to know who its biological parents are. Its final content and timing are uncertain. The current rules on parentage, parental authority and adoption are in Book 1 of the Dutch Civil Code.

What can we do for you with surrogacy?

Our family lawyers assist intended parents and surrogate mothers at every step.

• We draft or review the surrogacy agreement and explain which parts cannot be enforced.
• We prepare the request to the Child Care and Protection Board before the birth.
• We file the petition to end parental authority and appoint the intended parents as guardians.
• We arrange the acknowledgement, the denial of parenthood where needed, and the adoption petition.
• We assess recognition of a foreign birth certificate for a child born abroad.

Summary

• Surrogacy is allowed in the Netherlands, but commercial mediation and publicly offering or seeking a surrogate mother are criminal offences.
• The woman who gives birth is always the legal mother; a surrogacy agreement cannot change that and cannot be enforced.
• Intended parents become the legal parents only after the birth, through guardianship, acknowledgement and adoption.
• Gestational surrogacy through IVF is only possible at a few clinics under strict medical conditions.
• A bill to allow parenthood from birth has been prepared but has not yet entered into force.