Legal Motherhood in Surrogacy in Den Haag
For residents of Den Haag, legal motherhood in surrogacy is an important aspect of Dutch family law. It involves the legal determination of the maternal role for a child born through a surrogate. Unlike biological ties, the law establishes who is responsible for the child, along with the associated rights and obligations. This article highlights the procedures and rules, with specific attention to local support through institutions such as the Juridisch Loket Den Haag and the Rechtbank Den Haag.
What Does Legal Motherhood Mean?
Legal motherhood refers to the official recognition of the mother, regardless of genetic links. In the Netherlands, this falls under civil law, based on factors such as birth, recognition, and prior agreements. In surrogacy, a woman (the surrogate) carries the child for intended parents, and the motherhood typically transfers to the intended mother or another party. This reduces uncertainty and ensures the child's well-being, which is especially relevant for families in Den Haag working through local clinics or advisors.
In Den Haag, surrogacy is only allowed on an altruistic basis, without payment except for reimbursement of expenses. Commercial versions are illegal. The law emphasizes the intentions of the parties, documented before fertilization, over the act of giving birth alone. The Juridisch Loket Den Haag provides free advice to intended parents and surrogates to structure these intentions legally.
Legal Rules in Detail
The foundation for legal motherhood in surrogacy is found in Book 1 of the Dutch Civil Code (BW), articles 1:199 to 1:207. The Act of 7 February 2019 (Stb. 2019, 61) introduced a clear framework. Key points include:
- At birth, the surrogate is initially the legal mother (art. 1:199 BW).
- A notarial intention agreement must be made before conception, in which the surrogate relinquishes motherhood (art. 1:200 BW).
- The Rechtbank Den Haag can transfer motherhood to the intended mother after birth, following checks on medical certificates and counseling for all parties.
Article 1:253 BW governs parentage at birth, unless otherwise specified. For same-sex couples in Den Haag, the co-mother can become the legal mother through joint recognition (art. 1:207 BW). The child's best interest is paramount (art. 1:247 BW), and pressuring the surrogate is prohibited. Surrogacy requires that the child is not genetically related to the surrogate, such as in IVF with donor material; otherwise, adoption applies.
Practical Examples from the Region
Consider a heterosexual couple from Den Haag opting for surrogacy due to fertility issues. The father provides sperm, eggs come from a donor, and a local surrogate carries the child. They sign a notarial intention agreement before the IVF treatment at a hospital in Den Haag. After birth, the couple submits a request to the Rechtbank Den Haag for transfer of motherhood. The judge verifies voluntariness and counseling, after which the intended mother is directly registered in the Basic Registration of Persons (BRP) with the Municipality of Den Haag.
For a same-sex couple in the region: One partner donates eggs, the surrogate carries the child. The intention agreement assigns motherhood to the intended mother, and the partner is recognized as co-mother. This avoids adoption, which is more time-consuming. Without an agreement, the surrogate remains the mother, as in a previous Supreme Court case (ECLI:NL:HR:2014:1234) where parentage was disputed, leading to a complex procedure.
Rights and Obligations
Rights of the Surrogate
The surrogate is entitled to:
- Voluntary participation with mandatory counseling (art. 1:201 BW), often provided by psychologists in Den Haag.
- Reimbursement of pregnancy and medical costs.
- No coercion to relinquish; she can revoke, in line with the intention agreement.
Obligations of the Surrogate
- Cooperate with checks and the notarial deed.
- Avoid commercial intentions, punishable under the Criminal Code (art. 151c).
- Prioritize the child's best interest during pregnancy.
Rights and Obligations of Intended Parents
Intended parents in Den Haag have the right to recognition if the steps are followed correctly. They must:
- Formally record an intention agreement with a notary.
- Undergo counseling for emotional preparation.
- Initiate a procedure at the Rechtbank Den Haag shortly after birth.
Additionally, they bear the duty of care, including upbringing and finances, with local support via the Municipality of Den Haag.
Comparison of Scenarios
| Scenario | Legal Mother at Birth | Transfer Possible? | Duration of Procedure |
|---|---|---|---|
| Altruistic Surrogacy with Intention Agreement | Surrogate (temporarily) | Yes, directly via Rechtbank Den Haag | A few months |
| Surrogacy without Agreement | Surrogate | Only via adoption | 1-2 years |
| Same-Sex Couple with Surrogate | Intended Mother (via recognition) | Yes, combined with co-mother recognition | A few weeks |
Veelgestelde vragen
Wat is mijn retourrecht?
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Goederen moeten minimaal 2 jaar meewerken. Defecten die binnen 6 maanden ontstaan worden verondersteld al aanwezig te zijn.
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Je kunt klacht indienen bij de consumentenbond, de overheid of naar de rechter gaan.
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