There are two types of surrogacy that are legal in the Netherlands, and practice offers both of them. Traditional and gestational surrogacy are the two types.
The surrogate mother uses her own egg in traditional surrogacy. Because of this, the surrogate mother in traditional surrogacy is always the biological mother. The desired father’s or a donor’s sperm is used to inseminate the pregnancy (or it occurs naturally). Traditional surrogacy does not require any special legal approval. In addition, no medical attention is required.
However, in the case of gestational surrogacy, medical assistance is required. In this scenario, IVF is used to begin the process of ectopic fertilization. After that, the fertilized embryo is transferred to the surrogate mother’s uterus, which typically does not contain the child’s genetic material.
In the Netherlands, strict regulations apply to this type of surrogacy because of the need for medical intervention. These include that the child is genetically related to both of the intended parents, that the intended mother requires medical attention, that the intended parents themselves locate a surrogate mother, and that both women are within the age restrictions (up to 43 years for the egg donor and 45 years for the surrogate mother).
Promotion of (commercial) surrogacy is against the law
The fact that gestational and traditional surrogacy are both allowed in the Netherlands does not mean that surrogacy is always allowed. Indeed, commercial surrogacy promotion is against the law, according to the Penal Code. This means that no websites can advertise to increase surrogacy supply and demand.
In addition, it is against the law for intended parents to search for a surrogate mother in public, such as on social media. The reverse is also true: It is against the law for a surrogate mother to look for intended parents in public. In addition, surrogate mothers may not be compensated in any way, with the exception of reimbursement for their (medical) expenses.
Contract for surrogacy
If surrogacy is chosen, clear agreements are crucial. This is typically accomplished by drafting a contract for surrogacy. Since this is a form-free contract, the intended parents and surrogate mother can come to any kind of agreement. Because it is perceived as being against morality, such a contract is difficult to enforce legally in practice. As a result, it is critical that intended parents and surrogates cooperate freely throughout the surrogacy process.
A proxy mother can’t be obliged to surrender the youngster after birth and the expected guardians can’t be obliged to bring the kid into their loved ones. Due to this issue, more and more intended parents choose to look abroad for surrogate mothers. In practice, this creates difficulties. Please refer to our article regarding international surrogacy.
You, as an intended parent, do not automatically become a legal parent when the child is born because there is no specific legal regulation for surrogacy. This is because Dutch law on parentage is based on the idea that, even in the case of surrogacy, the birth mother is always the legal mother of the child. The surrogate mother’s partner is considered the parent by default if the surrogate mother was married at the time of birth.
The following procedure, therefore, applies in practice. The child is incorporated into the intended parents’ family with the consent of the Child Care and Protection Board following the birth and (legitimate) declaration of the birth. After the surrogate mother and possibly her spouse are removed from parental authority by the judge, the intended parents are named guardians. It is possible to adopt the child together after the intended parents have taken care of and raised the child for a year.
If the surrogate mother is unmarried or the fatherhood of her husband is denied, another possibility is that the intended father acknowledges the child or has his paternity recognized by law. After one year of raising and taking care of the child, the intended mother can then adopt the child.
The goal of the drafting legal proposal
“Child, surrogacy, and Parentage Bill” is to make the above-mentioned process for becoming a parent easier. Because of this, granting parenthood after surrogacy makes an exception to the rule that the birth mother is always a legal mother. This can be done before conception through a special petition process initiated by the intended parents and surrogate mother.
A surrogacy agreement must be submitted, and the court will look at it in light of the law. These are some: In addition to the fact that one of the intended parents is genetically related to the child, all parties have reached the age of consent and agree to undergo counseling.
The intended parents become parents at the time of the child’s birth if the surrogacy program is approved by the court, and they are listed as such on the child’s birth certificate. A child has the right to know who they are according to the UN Convention on the Rights of the Child.
As a result, if biological and legal parentage differs, a register is established to keep track of the information. Lastly, the proposed bill allows for surrogacy mediation to be exempt from the law if it is carried out by an independent legal entity appointed by the Minister.
Although traditional and gestational (non-commercial) surrogacy is legal in the Netherlands, the absence of specific regulations can make the process challenging. Despite a surrogacy contract, the parties are dependent on one another’s voluntary cooperation during the process. In addition, it is not always the case that the child’s intended parents are granted legal parenthood at birth.
By establishing legal guidelines for surrogacy, the proposed bill titled “Child, Surrogacy, and Parentage” aims to make the legal process more understandable to all parties. However, it is highly unlikely that this issue will be brought up in parliament until a subsequent reign.
Ravi Sharma is a self-motivated, successful entrepreneur and has a solid experience in the fertility segment. and he is the director at ARTbaby Global (ARThealthcare). He is a pharmacy graduate with post-graduation in business administration and has 14 years of rich experience in the field of infertility segment. He loves to write about IVF, Surrogacy, and other ART (assisted reproductive technology) news, issues, and updates. He is a Pharmacy graduate (B. Pharm) and M.B.A (marketing).
His most recent success includes the successful launch of the medical tourism company, ARTbaby, which offers treatment options for infertility, egg donation, and surrogacy. He likes spending time with his family and writing about various aspects of IVF surrogacy and donating eggs.