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New legislation on surrogacy desperately needed

Professor of Family Law, Lies Punselie, welcomes the new legislation on surrogacy. The law as it currently stands is ill equipped to deal with the issue, resulting in a legal path that is strewn with many obstacles. Her inaugural lecture took place on 17 January.

In her inaugural lecture Punselie, a specialist in Juvenile Law, urges the legislator to waste no more time in drafting new legislation: an advisory report outlining a number of improvements, published by the Government Committee on the Reassessment of Parenthood, has been available since 2016 and the position of children born to surrogate mothers is still not adequately regulated in the Netherlands. Punselie believes that, similarly to the Committee’s advice, the judge should become involved in the process at a much earlier stage in order to adequately safeguard the interests of children, surrogate mothers and prospective parents. Although the Dutch legal system currently does have the necessary tools at its disposal to deal with the legalities of surrogacy, Punselie has demonstrated that this often involves treading down a path strewn with obstacles: legislation that is not intended for this purpose is routinely used to achieve the desired legal result.

'Het recht moet de maatschappelijke ontwikkelingen volgen, niet andersom.'

The child’s interests come first

Punselie states that, fortunately, laws and courts in the Netherlands now act based on the best interests of the child. It didn’t always used to be like that. In 1947, a minister of Justice said ‘that the legislator should not be guided by compassion for children’. Things are different now, especially since the Netherlands ratified the UN Convention on the Rights of the Child in 1995. Society has changed, as evidenced by the fact that about 50% of children are now born outside marriage. ‘And the law must keep up with social developments, and not the other way around, as some would like,’ says Punselie firmly.

Huge variation

Surrogacy comes in all shapes and sizes: one of the prospective parents might be a genetic parent, both or neither of the prospective parents might be genetic parents, or the surrogate mother may or may not be the genetic mother. In this context, the term genetic is more appropriate than biological, since the surrogate mother is generally regarded as the biological mother – even if she’s not genetically related to the child. The use of an anonymous egg or sperm donor can also complicate matters further. In the Netherlands, anonymous donation is no longer possible; in many other countries, however, the anonymity of donors is guaranteed.

A need for legal flexibility

On the birth certificate, the Registrar of Births, Deaths, Marriages and Registered Partnerships states the name of the woman who gave birth to the child and her partner, if she has one. If the surrogate mother is unmarried, one of the prospective parents can acknowledge the child, after which the surrogate mother transfers custody to him (this is usually a man). The prospective mother can then adopt the child. ‘With a certain amount of creativity and legal flexibility’ (Punselie), it is possible to eventually get the names of the prospective parents on the birth certificate. This is a particularly significant moment; only then are they seen as the child’s parents before the law.

Prof. Lies Punselie

Unsuitable parents

If the surrogate mother is married, the current legislation also requires her husband to appear on the birth certificate as a kind of surrogate father. In such cases, the only way to end the parental authority of the ‘surrogate parents’ is through child protection measures.  However, this is only possible if the child’s development is seriously threatened and the surrogate parents are unable to care for and raise the child within an acceptable period of time. ‘The surrogate mother and her husband therefore have to declare themselves unsuitable parents, which isn’t a particularly nice thing to do,’ says Punselie. It is for this reason that another way has been sought and found whereby, with the help of a guardian, the paternity rights of the surrogate father are removed first. After that, the process can continue as though the mother were unmarried.’

Foreign certificates not recognised

In a number of other countries it is not the surrogate mother and her partner, but the prospective parents who are registered on the birth certificate straight away. ‘These birth certificates are not recognised in the Netherlands because we believe that the woman who gave birth to the child should always be on that certificate,’ says Punselie. Subsequently, all kinds of legal interventions are needed to ensure that the child is legally recognised as the prospective parents’ ‘own child’.

The Government Committee’s recommendations

At the end of 2016, the Government Committee on the Reassessment of Parenthood published an advisory report on surrogacy. The Cabinet sent its response to the House of Representatives in 2019, announcing that it was working on drafting a bill. The expectation is that this bill will be submitted this summer. The bill states that the surrogate mother and the prospective parents can make agreements prior to conception and have them assessed by a judge. The judge then examines whether both parties are sufficiently aware of what they are getting into and whether the agreements have been entered into with due thought and consideration.

In its report the Committee recommends that, up to six weeks after the birth, the surrogate mother should be allowed to ask the judge if she can keep the child herself.

Names on the birth certificate straight away

If that is the case, and if the process ultimately leads to the surrogate mother giving birth, the prospective parents can have their names put on the birth certificate straight away. However, the Committee is of the opinion that there should be a genetic connection between at least one of the prospective parents and the child, and that at least one of the prospective parents or the surrogate mother lives in the Netherlands. In its report the Committee also recommends that, up to six weeks after the birth, the surrogate mother should be allowed to ask the judge whether she can keep the child herself. The judge will then have to assess what has changed in the meantime and why, and whether this is of such importance that the child can no longer be transferred to the prospective parents. 

Topic of debate

When discussing surrogacy, the issue of whether the surrogate mother can receive payment often crops up. Many people are against it. In its report, the Committee proposes that the surrogate mother should be allowed to receive around €500 per month during the period of pregnancy and childbirth. Punselie also feels that surrogacy should not be a calling for which the surrogate mother receives no payment whatsoever..

There is little information available regarding how often surrogacy occurs in the Netherlands, since no official records are kept. A rough estimate is that there are a few dozen surrogate births a year and that there is a modest upward trend.

Tekst: Corine Hendriks
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