Surrogacy

Surrogacy

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A surrogate mother from the Netherlands or from abroad?

As it is becoming increasingly difficult to adopt a (young) child from abroad, more and more couples seem to opt for having a child through surrogacy. Legally, this is more complicated than it seems at first glance, especially if a surrogate mother is used abroad. The differences between using a Dutch surrogate mother and a foreign surrogate mother are discussed below.

Under Dutch law, the woman who gives birth to a child is the child's mother. It does not matter whether the genetic material comes from her. This means that the surrogate mother, even if it is the fertilized egg of the intended parents, is the child's mother.

Forms of surrogacy

There are two forms of surrogacy:
• High-tech surrogacy. This form of surrogacy involves IVF treatment, in which the eggs of the intended mother are fertilized in the laboratory with the eggs of the intended father. One embryo is then placed in the uterus of the surrogate mother. The child is therefore 100% genetically from the intended parents.
• Low-tech surrogacy. In this form of surrogacy, a pregnancy is created in the surrogate mother through artificial insemination. The surrogate mother is the genetic mother and the intended father is the genetic father.
In both cases, the surrogate mother is the legal mother of the child.

Surrogacy in the Netherlands

If you want to have a child in the Netherlands through high-tech surrogacy, you are dependent on the VU medical center in Amsterdam. This is currently the only hospital in the Netherlands that offers this treatment. The VUmc does set a number of conditions for the surrogate and intended parents before the treatment is started. For example, both the surrogate parents and the intended parent must have Dutch nationality and be proficient in the Dutch language. There are also various intake interviews with a medical psychologist and the surrogate and intended parents. These interviews will mainly examine the psychological state of each of them and whether each of them is stable, what the motivation of each person is and whether no pressure is put on anyone.

Since the surrogate mother is the legal mother of the child, legal steps will have to be taken to ensure that the intended parents will actually become the legal parents of the child. In this respect, it is particularly important whether the surrogate mother is married or not.

If the surrogate mother is unmarried, the unmarried intended father can acknowledge the child with the permission of the surrogate mother. The acknowledgement can take place before the birth, so that the child immediately has the intended father as its legal father. The surrogate mother is and remains the mother. The father can then request the court after the birth to grant him sole custody of the child. After the birth and acknowledgement of the child, the child can be directly transferred by the surrogate mother to the intended parents.
If the intended father is married, the 'old-fashioned' provision applies in the Netherlands that a married man cannot acknowledge a child with a woman other than his wife without permission from the court. In that case, an additional procedure at the court is required before the intended father can acknowledge the child. After one year of actual care of the child, the intended mother can request adoption in both cases.

If the surrogate mother is married, her husband is automatically the legal father of the child. Because a child can only have two parents, the intended father cannot acknowledge the child. In this case, the cooperation of the Child Protection Board is required. The intended parents must first request written permission from the Child Protection Board to take the child into their family before the birth of the child. This permission is not required if the surrogate mother is the mother, sister or aunt of the intended parents. After the birth of the child, the Child Protection Board will then start an investigation and – if the Board is of the opinion that this is in the best interests of the child – will request the court to release the surrogate parents from their parental authority. The intended parents can request the court in the same procedure to grant them custody of the child.

In the case of high-tech surrogacy and upon presentation of a statement from the hospital stating that the child is genetically a fully own child of the intended parents, the Council for Child Protection will conduct a limited investigation. In all other cases, the Council will conduct an extensive investigation into the intended relinquishment, in which it will be assessed whether all conditions have been met. This means that there may be no question of financial or other advantage, that independent counselling has taken place and that there is a reasonable period of reflection after the birth for the intention to adopt.

Once the intended parents have cared for the child for one year and have demonstrably lived together for three years, the intended parents can request the adoption of the child.

Surrogacy abroad

Because the number of couples eligible for treatment at the VUmc is limited, many couples look for a surrogate mother abroad. The legal complications that this path entails are often not foreseen.

There are a number of countries where surrogacy is legally regulated, such as Ukraine, India and some states in America. In Ukraine, for example, the parents from whom the child is genetically descended are the legal parents. The intended parents are therefore listed as parents on the children's birth certificate. In the Netherlands, this leads to major problems. Because Dutch law stipulates that the woman from whom the child is born is the legal mother of the child, the government considers a birth certificate on which the intended parents are listed as parents to be in conflict with Dutch public order. This results in the child not receiving Dutch nationality. In Ukrainian nationality law, the basic principle is ius sanguinis, which means that nationality is determined by descent, i.e. biological relationship. The surrogate mother is not regarded by the Ukrainian authorities as the (legal) mother of the child. The child can therefore not derive Ukrainian nationality from her. Since the child does not have Dutch nationality under Dutch law, but also does not have Ukrainian nationality under Ukrainian law, the child is more or less stateless. The child does not have a passport, which means it cannot come to the Netherlands. If it is already in the Netherlands, it is not possible to place the child with the health insurance of one of the parents. The child does not have a citizen service number, which means it is not entitled to child benefit or childcare allowance. It can take years before the intended parents are the legal parents of the child. Several procedures must be conducted for this.

It is also important that if a child is born abroad, a declaration of Dutch nationality must be issued by the Dutch embassy or consulate there in order to travel to the Netherlands. There is a good chance that the intended parents will then have to show a statement from a doctor, stating that the intended mother herself gave birth there. The embassies/consulates have instructions from The Hague to look at this very carefully. If the declaration of Dutch nationality is not issued, the foreign birth certificate cannot in principle be registered in the Netherlands either.

The Council for Child Protection has drawn up a protocol (ASAA Protocol 2009). This Protocol states that if the surrogate mother lives abroad and/or gives birth abroad, the laws and regulations for intercountry adoption apply.

On November 4, 2009, the then Minister of Justice sent a letter to the House of Representatives in which he announced an investigation into the nature and extent of commercial surrogacy and illegal adoption of a (foreign) child.
This research has now been conducted by the Utrecht Centre for European Research into Family Law (UCERF). The report was published in March 2011 and presented to the House of Representatives. The UCERF concludes, among other things, that Dutch legislative policy can be characterised as consistent in its objective of discouraging surrogacy. Furthermore, international surrogacy is not exhaustively regulated in Dutch legislation. This creates legal uncertainty for the children involved, the intended parents and the surrogate mothers. The question is whether and, if so, in what way surrogacy should be regulated.

The report has not yet been discussed in the House of Representatives. Any regulation in this area is not expected in the short term.

At European level too, it has been signalled that regulations are needed for surrogacy. The Hague Conference on Private International Law has also announced a study. It is not yet known when the results of this study are expected.

Commercial surrogacy

In the Netherlands, giving a surrogate mother a financial incentive to carry another person's child is prohibited. Commercial surrogacy is punishable by law as such, as is mediating for surrogacy or making public information showing that intended parents are looking for a surrogate mother. However, it is permitted to pay compensation for costs to the surrogate mother. This could include compensation for the costs of pregnancy (such as maternity clothing), compensation for the costs of giving birth and any loss of income. There are no fixed guidelines in the Netherlands regarding the amount of compensation for expenses that is acceptable in the case of surrogacy.

November 2011

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