Short report: Surrogacy reforms in the Netherlands

Abstract

Background

In July 2023, a revised draft Law regulating non-commercial surrogacy in the Netherlands was presented to Parliament. The Bill aims to create greater legal certainty for the surrogate mother and intended parents while emphasising the child’s best interests. Key elements of the proposal include: 'surrogacy agreements' that are recorded prior to conception and submitted to the court for approval, and the child’s right to information about parentage. To facilitate this right, a register will be established containing the donor details, information about the surrogate mother, details regarding domestic and foreign adoption, and other general information about biological parentage.

Methodology

This brief report examines the proposed normative framework for regulating surrogacy arrangements in the Netherlands from a legal perspective, questioning whether it provides greater legal certainty for the surrogate mother and intended parents.

Results/discussion

Key elements of the surrogacy bill are the non-commercial character of surrogacy, judicial review of the surrogacy agreement, and the child's right to parentage information. This draft Law complies with the protective interests of the child under Article 8 of the ECHR and various provisions of the Convention on the Rights of the Child. It also guarantees the reproductive autonomy of the surrogate mother and her right to protection against exploitation. For the intended parents, on the other hand, there is no absolute human rights protection for having a child. In this sense, there is no right of access to surrogacy.

Conclusion

The bill leaves some questions unanswered, which would be better addressed by judicial discretion.