Surrogacy and the Dutch law

Introduction

The decision to have a child through surrogacy does not only have emotional, psychosocial, medical, ethical and practical sides, but also legal ones. What legislation is there in the Netherlands? You'll find more information about this on this page.

Please note: new legislation is being prepared. The text on this page discusses the current situation before the new legislation comes into force. Click on this button for further information on the proposed new legislation:

Further information on the Child, surrogacy and descent bill (in Dutch)

Table of contents for this page

Advice and guidance from a family law lawyer specialised in surrogacy

There are many legal aspects to a surrogacy process. Make sure to always take the advice of and seek guidance from a family law lawyer specialised in surrogacy. The intended parent(s), the surrogate, her partner, if she has one, and the possible donor and her partner must all get independent legal advice. Get informed in time. That means well before a pregnancy.

If you go abroad, you will need a family law lawyer specialised in surrogacy in the country you are going to as well as a Dutch family law lawyer specialised in surrogacy. The Dutch lawyer will be able to inform you about the legal consequences of your decisions and can guide you in getting your parenthood acknowledged in Netherlands.

Timely

Timely means well before a pregnancy. Well before a pregnancy means that you don't try to get pregnant before consulting a lawyer. This ensures that everyone involved understands what's involved from a legal standpoint, what everyone's rights and obligations are, and ensures all expectations and joint decisions are clearly set out in a written agreement. It is important for everyone involved to properly think through the consequences of the chosen surrogacy process.

If the assistance of an egg donor is also required, it is important that prospective parents and the egg donor contact their own lawyers before treatment to create embryos begins.

You should only attempt to get pregnant once everyone has signed the surrogacy agreement.

Brief legal explanation

In the video below (in Duth), family law lawyer Jo-an van der Tol explains the legal aspects of surrogacy (filmed in June 2023, still valid in August 2026).

The bill: Child, surrogacy and descent has now been presented to the House of Representatives. Here, you can read more about the progress of the new bill (in Dutch).

Various aspects are explained further in the text below.

What is a surrogate?

First and foremost: what is the definition of the term surrogate?

Article 151b paragraph 3 of the Criminal Code establishes the legal definition of a surrogate, namely:

“A surrogate is defined as a woman who has become pregnant with the intention of bearing a child on behalf of another person who wishes to acquire parental authority over said child, or otherwise wishes to permanently assume the care and upbringing of said child.”

It is therefore a matter of the surrogate getting pregnant deliberately to satisfy the intended parent(s)' desire to have a child. It is therefore not an unplanned or unwanted pregnancy where the child is given to the intended parent(s). In most cases, at least 1 of the intended parents is genetically related to the child.

Is surrogacy permitted in the Netherlands?

Yes, surrogacy is permitted in the Netherlands and therefore it's not prohibited. But it's important to follow the correct steps, because the process followed must not be in conflict with Dutch law and Dutch public order.

Is there any surrogacy-specific legislation?

No, but new legislation is on its way. Dutch legislation on surrogacy is currently in progress. The intention is for the legal parenthood of intended parents to be determined from birth. The legislation is expected to comprise regulations for Dutch surrogacy and regulations for international surrogacy.

This information page will be updated as soon as there is an update on the new legislation.

Until then, all parties involved will continue to be subject to the current legislation.

Further information on the Child, surrogacy and descent bill

What does Dutch law say about surrogacy?

At the current time, the only provisions regarding surrogacy are contained in the Criminal Code. This is because the Dutch government originally had a policy of discouragement regarding surrogacy. This policy of discouragement is now being abandoned and there is legislation in the works specifically for surrogacy. The reason behind this that the State Commission on the Reassessment of Parenthood has carried out years of research on the issue of whether surrogacy legislation was needed. This state commission recommended in a 2016 report that it was in the interests of everyone involved to draw up surrogacy-specific legislation. Since then, the Cabinet has been preparing legislation on surrogacy. Until this comes into force, we are dependent on current legislation which was not designed for surrogacy processes. Until then, there are various pathways to legal parenthood for intended parents. A family law lawyer specialised in surrogacy can advise you on these.

Article 151b paragraph 3 of the Dutch Criminal Code defines a surrogate mother (see above).

At the current time, you're prohibited from offering yourself publicly as a surrogate mother, such as by advertising yourself as a surrogate online or in a newspaper. Intended parent(s) are also prohibited from advertising for a surrogate, such as by placing an advertisement online.

Additionally, acting (commercially) as an intermediary between intended parents and surrogates is also prohibited.

These prohibitions and the penalties for violating them are established in Article 151b paragraph 3 of the Criminal Code:

In addition to these prohibitions, the trade and sale of children is also prohibited. But you are permitted to reimburse a surrogate and a donor for any costs they incur.

What is the legal purpose of surrogacy?

The legal goal is to work towards the intended parent(s) becoming the legal parents with parental authority over the child. A prerequisite for this is that you follow a carefully safeguarded process. A family law lawyer specialised in surrogacy can provide you with the correct information beforehand.

You will encounter a number of legal terms during the legal process. It is useful to know the legal definition of some very common words, like mother or father. There are also some less familiar terms with which it's useful to get acquainted.

What is a legal parent?

You are a legal parent for life and beyond. Parenthood creates a family bond with the child (for inheritance purposes) and also entails financial responsibilities. Legal parenthood also matters for citizenship and surname.

Under current legislation, a child cannot have more than two parents. In its December 2016 report, the State Commission on the Reassessment of Parenthood advised allowing multiple parenthood as well, but this is not yet the case. Nor can we be sure whether it will be so in the future.

What is parental authority?

Parental authority is the right to take decisions on upbringing (parental authority decisions): school, name, medical decisions, residence abroad, etc. But it is also an obligation to care for and raise a child. It is a practical and financial responsibility that is time-limited. When a child turns 18, your parental authority rights expire; this is the opposite of parenthood (which is eternal).

Under current legislation, only two people may exercise parental authority. They could be the two foster parents but also a foster parent and another person. If no parents are involved, we talk of guardianship.

Who is a legal parent?

We would like to note here that the Dutch Civil Code has not yet been re-written to be gender-neutral and therefore assumes a legal mother and a legal father, rather than a legal parent or legal person.

Who is a legal mother:

a woman who gave birth to a child (regardless of whose egg was involved), or
a woman who has acknowledged a child, or
a woman who has adopted her partner's child, through co-mother adoption or partner adoption, or
a woman who has adopted a child (inter-country or national adoption), or
a woman who at the time of birth is married to or the registered partner of the birth mother (she becomes the mother 'automatically'), on the condition that:
- the child is not acknowledged by someone else, and
- the donor is an identifiable donor, and
- Insemination occurred through an authorised Dutch clinic, and
- The declaration of parenthood of the College of Donor Data for Artitificial Insemination (CDKB) is handed to the municipal officer at the time of the birth registration

Thus under the current legislation, the surrogate is always the legal mother at the time of birth. This means that in the case of surrogacy, parenthood is transferred to the intended parent(s) by the court. A family law lawyer specialised surrogacy can provide guidance on this matter.

Who is a legal father:

the man who was married to or the registered partner of the mother of a child at the time of birth, or
the man who has adopted a child (inter-country adoption, national adoption or step-parent adoption), or
the man who has acknowledged a child
the man who has established fatherhood by judicial means.

If the surrogate mother is married to a man, then her husband automatically becomes the child's legal father at birth. The intention is for the judge ultimately to transfer parenthood to the intended parent(s).

Providing the surrogate is unmarried, one of the intended parents can acknowledge the child at the municipality during the pregnancy. The surrogate must agree to this. Before taking such steps, please take the advice of a family law lawyer specialised in surrogacy .

Who has parental authority?

The birth mother has automatic parental authority. Providing the child is born within marriage (or a registered partnership), her spouse/partner has it too (unless the child has been acknowledged by someone else).

As of 1 January 2023, a parent who acknowledges the child at the municipality (with the consent of the unmarried surrogate mother) automatically acquires parental authority too. The acknowledging parent and the surrogate may also make a declaration at the municipality that parental authority will remain (initially) with the surrogate alone.

In other cases, a joint request for shared parental authority can be made by submitting a form to the court, or it can be determined by the court.

How do the intended parents acquire legal parenthood with parental authority?

This question does not have a simple answer and depends on many factors, including the nationality of the intended and surrogate parents, where the child is born, who is recorded on the birth certificate, whether or not the surrogate mother is married, etc. Therefore, it is important to take the advice of a family law lawyer specialised in surrogacy. Such a lawyer can establish a clear step-by-step plan for the entire process with everyone involved.

Agreements

Clear agreements need to be made between all the parties involved in all surrogacy processes. These are recorded in a surrogacy agreement. If a donor is involved as well (this could be either an egg or a sperm donor), a donor agreement needs to be drawn up too. This is the case both for processes in the Netherlands and for those abroad.

The agreement sets out all the expectations and agreements between everyone involved. It includes provisions on:

What is the legal goal?
Who will become a legal parent?
What practical agreements are included in it?
What are expenses and how are they compensated?
How are the parties to communicate during the pregnancy?
The relationship of the involved parties have with the child after the birth.

You cannot enforce compliance in court with all the provisions in a surrogacy agreement. For example, a surrogate can never be compelled to become a surrogate if she changes her mind after signing the agreement. Nor can binding clauses be made regarding relinquishing the child to the intended parents. Should a dispute arise, a judge has to determine where the child should live and with whom they may have contact.

We recommend that each party engage their own lawyer for independent assistance and advice.

The agreement should be drafted by a specialist lawyer and signed before the pregnancy.

Permission of the Dutch Council for Child Protection

The Council for Child Protection will get involved in any surrogacy process. That can occur at 2 points in the journey:

1. The first time is during the pregnancy. If the surrogate is married, the surrogate and her spouse will be the first legal parents at birth. The intended parents will not yet be the legal parents. The law states that the intended parents must obtain the approval of the Council for Child Protection before taking the child into their family.

This is set out in:

Article 151a of the Criminal Code

Anyone, who for profit, willfully facilitates the placement of a child under the age of six months who is not under the guardianship of a legal entity, as a foster child, without the prior written consent from the Council for Child Protection, shall be sentenced to a maximum of six months imprisonment or a fine of the third category.

2. The Council for Child Protection will also examine the interests of the child during the court proceedings. The judge will involve the Council for Child Protection in this. This is standard in cases involving underage children.

The Council for Child Protection examines, among other things, whether going to live with the intended parents is in the child's best interest. It also examines whether the intended parents followed a robust process. Furthermore, the Council for Child Protection examines any potential criminal record of the intended parents.

International surrogacy

It is sometimes not possible to carry out a surrogacy process in the Netherlands and people therefore feel compelled to go abroad. In some countries, like Canada and the United States, surrogacy is legally regulated.

There are major differences in the ethical approaches of some countries regarding surrogacy. Therefore, it is essential to make the right decisions upfront and get properly advised by a family law lawyer specialised in surrogacy. In addition, it is important to seek information and guidance from a Dutch counsellor with experience in surrogacy. This will allow you to take the best decisions about your future child.

The lawyer in the Netherlands oversees the entire legal process as well as checking the donor and surrogacy agreements prior to signature. The Dutch lawyer also makes agreements with the foreign lawyer over the legal process abroad and which parents should be registered on the birth certificate.

Even if the legal parenthood of the intended parents is established abroad, it is not currently recognised in the Netherlands. The intended parents need to follow a court process in the Netherlands. The judge can acknowledge or establish the intended parents' parenthood. For this to happen, the intended parents must have followed a safeguarded process abroad and nothing may be contrary to Dutch public order. A family law lawyer specialised in surrogacy can provide further information on this.

If the intended parents have multiple nationalities, it is advisable to involve lawyers from the relevant countries, because the legal outcome may be different elsewhere. The lawyers specialised in surrogacy then work together as a team.

When choosing a process abroad, it important to involve a lawyer specialised in surrogacy at an early stage – well before making embryos or becoming pregnant.

Donors

In some cases, a donor is involved in the surrogacy process. This might be a male couple who want to become parents. They will need an egg donor. Or it might be a male-female couple where one of the intended parents is unable to provide sperm or eggs for medical reasons. They might then make use of a sperm or egg donor. For additional information, consult the National information point for donor conception regarding (the legal side) of donating sperm and eggs.

No anonymous donation

In 1989, the United Nations adopted the Convention on the Rights of the Child. Article 7 of that convention states that a child has the right to know who their parents are. Article 8 states that information about their identity, including family relationships, must be preserved.

This means that governments in many countries look unfavourably upon treatment with sperm (or an egg) from an anonymous donor. In the Netherlands from 1992 to 2004, intended parents were given the choice of whether they wanted an anonymous donor (A-donor) or an identifiable donor.

Artificial Insemination Donor Data Act

The Artificial Insemination Donor Data Act came into force in 2004. Anonymous donation of sperm or eggs is no longer authorised. Children whose parents use the help of a sperm, egg or embryo donor have the right to know the identity of the donor.

From the age of 12, children can request information about the donor without being told their identity. From the age of 16, they can also receive the donor's identity details.

The Artificial Insemination Donor Data Act only applies to sperm bank donors (B-donor). Intended parents with a known donor (C-donor) make their own agreements and set them out in a donor contract.

You will encounter a number of legal terms. It is useful to know the legal definition of some very common words, like mother or father. There are also some less familiar terms with which it is useful to be acquainted.

These are all general descriptions. Do you have any questions about your individual situation? Consult a family law lawyer specialised in donorconception about them.

The donor has neither parental authority nor responsibility for bringing up the child. A donor is not the child's parent unless this has been agreed with the intended parent.

Foreign donors

It is possible that the intended parents select a foreign donor. Entering into a surrogacy process with a foreign donor is permitted, providing the donor is not anonymous.

In many countries ideas about donors differ to those in the Netherlands. Therefore, some countries require donations to be exclusively anonymous. It is very important that Dutch intended parents do not opt for anonymous donation, even if it is mandated by the other country. It is prohibited in the Netherlands. Not only will an anonymous donor raise a lot of legal problems, but even more importantly, by following that route, you will remove the possibility for the child to later get information about the donor and potentially get in touch.

What else should you to be aware of?

A lot is involved in surrogacy. Therefore it's important to get the advice of a specialised lawyer , Beyond the whole legal process, the lawyer can advise you, among other things, on:

the need to write a will;
the added value of psychosocial and practical counselling
taking out life insurance and disability insurance;
parental leave for intended and surrogate parents;
the options for insuring the child for healthcare insurance;
how to obtain a burger service number for the child;
registering the child at your home address in the basic register of persons;
requesting authorisation from the Council for Child Protection for taking the child into the family;
which surname (last name) the child can have;
guardianship;
in international surrogacy cases: getting the child a valid residence permit.
etc.

What are the consequences of failing to establish a robust legal framework for the surrogacy process?

If, as intended parents, you don't make the right decisions in the surrogacy process, for example:

Choosing an anonymous donor or
Not choosing an ethically responsible route

This can have far-reaching consequences in the Netherlands. There will then be a chance that the judge will not acknowledge the legal parenthood of the intended parents in the Netherlands. As a result, the child may not be able to become your legal child.

This is also why it is important to seek out the guidance of a specialist surrogacy family law laywer. You must consult your lawyer before trying to get pregnant. They will be able to advise you on making the right decisions and will establish them in a surrogacy agreement. This will prevent a lot of:

Doubts
Anxieties
Stress.

Civil Registry

If your child is born with a surrogate's help, they will be recorded in the birth register as the surrogate's child. If the surrogate is married to a man, then he will automatically be the father. A legal process is required to transfer parenthood and parental authority. (also see how intended parents become legal parents with parental authority)

If you, the intended parents, imagine you can escape the legal process, you are mistaken. If you, the intended parents, register the child's birth with the authorities as your own you will be committing a crime. You will be committing fraud. You can be given a fine or even prison sentence for this.

Summary

Legal parenthood with parental authority does not occur automatically with surrogacy. You must always go to court. The steps you must take depend on your situation and the decisions you make. Take legal advice well before pregnancy from a specialist family law lawyer about your situation and what you can expect.

The surrogacy agreement and possible donor agreement can only be drawn up and signed once everyone has agreed on all matters. Any partners must also be included in this process. Only after everyone has signed the agreement(s) should you try to get pregnant.

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