As the world develops and technology advances, so do our relationships. These days it is not uncommon to conceive a child via IVF or via surrogacy. Conceiving a surrogate child in another country can lead to unforseen complications.

Commercial surrogacy is forbidden in The Netherlands

Since 2021, it has been forbidden in The Netherlands to pay a surrogate more than 190 Euros per month for carrying a child. The idea behind this law was to end the exploitation of women. Practically, this means that (commercial) surrogacy is now forbidden in the Netherlands. Only close friends or relations are likely to function as a surrogate for this amount.

Now, more and more people are turning to surrogate mothers in other countries, where commercial surrogacy is legal, such as the US and Canada. There are developed practices for surrogacy and agencies that connect intended parents with surrogate mothers. They also arrange the contracts and paperwork.

Who is the parent on the birth certificate?

Some jurisdictions go so far as to only register the intended parents on the child’s birth certificate. The surrogate is not included on the birth certificate. In the case of surrogacy for gay couples, no mother is registered at all.

The legal problem with a birth certificate without a birth mother

Dutch law states that it is necessary to name the mother of the child on the child’s birth certificate. The law assumes that only the ‘birth mother’ can (and must) be registered on the birth certificate. However, foreign birth certificates from countries that have legalised surrogacy completely, often do not include a birth mother. This led to the registrar in the Netherlands denying the registration of the foreign birth certificates stating only the intended parents as contrary to law. Not having a birth certificate in The Netherlands is like being stateless. For example, you cannot request a passport for the child.

Ground-breaking ruling of the The Hague court for surrogate children

In January 2023, the Family court of The Hague ruled that the registrar cannot refuse registration out of hand. Contrary to current practice, foreign birth certificates which do not have a birth mother due to surrogacy, may be registered in the Netherlands if the surrogacy meets certain criteria. The rights of the child also need to be taken into account.

First of all, the surrogacy must conform to a legal procedure. What the court tested in this case was whether the procedure was completed according to the national law of the country the child was born. And, in addition, whether this process was followed meticulously and ethically. It is important to note that the birth certificate to be registered in the Netherlands must be legal in the country of surrogacy.

There also needs to be some form of confirmation that the mother does not have any interest in the child. This can, for example, be proven via a ‘’denial of motherhood’’ which is possible in the United States. If this is not clear, then there is a possibility that the surrogate mother will have to be involved in the case.

Lastly, the court will look at whether the child has access to information about its surrogate mother and whether this will be guaranteed in the future. In this case, the surrogate mother was registered in special documentation for surrogate mothers by which the child will always be able to trace back who its mother was.

New legislation on the way?

There has been some disquiet in The Netherlands about this ruling as it breaks with the tradition of there always being a (birth) mother. This particularly rankles in conservative and religious circles. There is also new legislation being prepared concerning surrogacy. This may open up the possibility of request the courts to recognise intended parents even before birth. The surrogacy arrangements can then be legally tested against fixed criteria to prevent exploitation. However, at this time it is unclear if and when this legislation will pass into law.

If you have any questions about registering a foreign birth certificate in case of surrogacy, please contact us.

This article was co-written by Elena Cornelisse.

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