Results of WODC research report on surrogacy processes in the Netherlands
Surrogacy is a complex and sensitive issue involving many different rights and interests. Commissioned by the Scientific Research and Documentation Centre (WODC), research was conducted into surrogacy procedures in the period 2017-2022. The aim of the research is to gain insight into the number of surrogacy cases in the Netherlands and the experience of those involved. Both the experience of the intended parents, surrogate mothers and children as well as of the professionals involved. Nynke van der Storm and Mindy Mosk of our office have participated as professionals in this research. The research results were published on October 17, 2024.
The full report is here to read.
What is surrogacy?
Surrogacy means that a person or a couple who wants to have a child (the prospective parents) another woman (the surrogate mother) to carry a child for them. In the Netherlands, there is currently no legal regulation that regulates surrogacy. This makes for a complicated and lengthy process for prospective parents.
Surrogacy can be low-tech or high-tech. Low-tech surrogacy means that a surrogate mother carries a child for another, but the egg comes from the surrogate mother herself. High-tech surrogacy uses the egg of the intended mother or an egg donor. The surrogate mother is then genetically unrelated to the child.
It is estimated that between 30 and 50 children are born in the Netherlands each year with the help of a surrogate mother. In the period 2017-2022, there were 165 cases of surrogacy in the Netherlands. These are only cases in which a child was actually born and which are known to the court or the Child Protection Board. In all probability, this is an underestimation of the actual number of cases. Intended parents who are looking for a surrogate mother or are still in the preliminary phase are not included in this number. Just over half of the trajectories took place abroad (57% compared to 43% in the Netherlands). The number of trajectories has increased in recent years.
Surrogacy agreement
When the intended parents and the surrogate mother decide to enter into the process together, they usually draw up an agreement. This is also called the surrogacy agreement. This contains agreements on subjects that are relevant to the various phases of the process. This may include how the contact between the parties will proceed during the pregnancy and afterwards, what lifestyle the surrogate mother will have during the pregnancy (such as agreements on nutrition and abstaining from consuming alcohol/smoking), agreements on the wishes for the birth (such as the presence and/or absence of the intended parents at the birth), in the event of complications the pregnancy will be terminated and any agreements on the (financial) compensation for the surrogate mother to compensate for loss of income, medical costs, vitamins, clothing, etc. Not all agreements in a surrogacy contract are legally enforceable. For example, agreements on abortion cannot be legally enforced.
The research shows that if the parties involved do not agree on certain (crucial) topics, they will not start the process together. All intended parents and surrogate mothers in the research were therefore satisfied with the process; they are proud of the child that was born and happy with the relationship they have built up with each other.
The research shows that Dutch processes are running smoothly, but that there are also bottlenecks.
Bottlenecks in practice
The absence of a legal arrangement is mentioned by intended parents as well as by professionals as the biggest bottleneck. There are long waiting times at both the Child Protection Board and the Judiciary, which results in a period in which the surrogate mother is the legal parent and exercises authority over the child, while the child already lives with the intended parents. This results in various practical problems (such as applying for a passport, problems with the application for child benefit, applying for care leave or health insurance). Intended parents also experience problems in foreign processes. For example, there are major differences between courts and municipalities in the Netherlands about allowing the recognition of the child by one of the intended parents prior to the birth if the child is born abroad.
Anonymous donation is not permitted in the Netherlands. However, this occurs regularly abroad (for both egg and sperm donation) and there is no worldwide ban. The disadvantage of using an anonymous donor is that it will not be possible for children to trace their (complete) genesis, while they are entitled to this under the Convention on the Rights of the Child. Another problem may arise that donors donate very often, which means that children may ultimately have more than a hundred genetic half-brothers or half-sisters without knowing it.
Bill on Child, Surrogacy and Descent
The Child, Surrogacy and Descent Bill is currently before the Lower House. This bill aims to create legislation in which intended parents are considered the legal parents of the child from birth, in contrast to the current situation in which the surrogate mother is considered the legal parent by operation of law. Parents must then meet certain conditions. For example, one condition in the bill is that parents have had the surrogacy agreement assessed by a judge prior to pregnancy, whereby the judge will also investigate whether the surrogate mother has had independent medical, psychological and legal support.
Furthermore, the bill provides for a maximum permitted compensation for the surrogate mother. According to intended parents, on the one hand there is a need to compensate the surrogate mother for the effort and out of gratitude. At the same time, according to intended parents, it is important that the surrogate mother does not enter into the process purely for financial reasons. However, the maximum permitted compensation envisaged in the bill does not apply to foreign processes.
Both proponents and opponents of surrogacy agree that there should be a legal regulation to better protect the interests of those involved. The report concludes that offering clear guarantees and monitoring enforcement minimizes the chances of abuses and that this actually contributes to social acceptance of surrogacy in the long term.
Conclusion
Although the overall picture of the research indicates that Dutch trajectories are progressing positively, the (ethical) concerns should not be lost sight of.
The research shows that those involved find it important that more attention is paid to guidance. A difference was found in the guidance for high-tech and low-tech processes. In high-tech processes, there is often extensive guidance in the preliminary phase that is continued during the process. In low-tech surrogacy, intended parents and surrogate mothers indicated that they themselves look for the guidance they need and that guidance is particularly lacking in the area of aftercare. There is also a desire for scientifically substantiated advice on, among other things, the bond between intended parents and the child.
There should also be more attention for the complexity of legal procedures and possible infringements of the rights of children. This mainly concerns the right of the child to information about parentage and the fact that the procedure takes a long time and children therefore have a long period of uncertainty in which the legal responsibility and the actual responsibility for the child are separated. Children are then insufficiently protected, especially in emergency situations.
Finally, the researchers point out that there are concerns about the thin line between surrogacy and child purchase. The determining factor for this distinction is whether payment is made for the transfer of the child itself.
Would you like more information about surrogacy? Please contact Nynke or Mindy. They can advise you further.
