Intended parents who arrange a surrogacy abroad regularly discover that the legal parenthood recognised in the country where the child was born is not automatically recognised in the Netherlands. That gap is the whole of the problem, and it is best addressed before the child is born rather than at a Dutch consulate afterwards.
The starting point in Dutch law
Under Dutch law the woman who gives birth is the child’s legal mother. That rule applies whether or not she is genetically related to the child, and whether or not a foreign birth certificate names someone else. Where she is married or in a registered partnership, her spouse is in principle the second legal parent.
The Netherlands has no statutory framework for surrogacy. It is not in itself an offence to enter into a surrogacy arrangement, but commercial mediation in surrogacy and publicly offering or seeking a surrogate mother for profit are criminal offences. Arrangements abroad that involve payment beyond expenses therefore need careful assessment.
Recognition of a foreign parentage decision
Whether a foreign birth certificate or court order can be recognised in the Netherlands is a question of private international law, and the answer is not uniform. Recognition is assessed against Dutch public policy, and the elements that weigh are whether the surrogate mother gave free and informed consent, whether the intended parents have a genetic link with the child, whether a court in the country of birth examined the arrangement, and whether the child’s interests were considered.
Where recognition is refused, the route to legal parenthood in the Netherlands runs through the domestic instruments: acknowledgement by the intended father where possible, followed by adoption by the other intended parent. That takes time, and in the interval the child’s position – nationality, travel documents, authority to take decisions – is precarious.
Getting the child to the Netherlands
This is where arrangements most often go wrong in practice. A child whose Dutch parentage is not established may not have a claim to Dutch nationality, and therefore no Dutch passport. Whether the child can travel depends on the nationality of the country of birth and on the documents that country will issue, and some countries will not issue travel documents to a child they regard as foreign.
Intended parents have found themselves unable to leave the country of birth for months. The way to avoid that is to establish, before starting, exactly which documents the child will receive, from which authority, and what the Dutch authorities will do with them.
What to arrange in advance
Take Dutch legal advice before entering into any arrangement, not after. Establish how parentage will be established in the country concerned and how that will be assessed here. Check the criminal law limits on payment and mediation. Arrange the child’s travel documents as part of the plan rather than as an afterthought. And record the arrangement with the surrogate mother properly, including what happens if anyone changes their mind – a contract that is unenforceable in the Netherlands can still be the document that shows consent was informed.
సలహా
We advise intended parents before and after a foreign surrogacy, on recognition, adoption, nationality and travel documents, and we work with lawyers in the country concerned. Please contact Law & More.
