1. Is surrogacy regulated by a specific law in your country? No. Surrogacy is currently unregulated, apart from a criminal prohibition of (commercial) mediation in surrogacy. Currently, there is a legal framework in preparation regulating parentage following surrogacy in the Netherlands as well as the acceptance of parentage following international surrogacy. This legislative proposal has been sent to parliament for adoption on the 4th of July of 2023.
2. Is surrogacy regulated in another way? (please specify) No. The Dutch civil code has no mention of surrogacy. Accordingly, the regular provisions in the field of parentage, parental responsibility and child protection apply in these cases. After birth, the surrogate mother is the legal mother of the child. The intended parents can only become the legal parents through recognition and adoption upon request at the Dutch court. Surrogacy arrangements can be made but will not be enforceable when it contains arrangements that conflict with Dutch legislation, such as arrangements to transfer the legal parentage.
3. Has surrogacy been the subject of jurisprudence/court cases in your country?
Yes, in specific international surrogacy cases:
In recent years there have been court rulings that allowed for the recognition of foreign denial of maternity (not recognized in Dutch Civil Law, Court The Hague June 27th 2019 and Court Amsterdam February 12th 2020, ECLI:NL:RBAMS:2020:871). And also the recognition of a foreign birth certificate with two intending parents of opposite-sex (Court Amsterdam, August 29, 2023, ECLI:NL:RBDHA:2023:13397) and two fathers on it (Court Amsterdam, February 12th, 2020, ECLI:NL:RBAMS:2020:1628). In all cases the court only recognized the foreign birth-certificates under the condition that there had been due process in the originating country, and information on the origin of the child, under which the genetic relations of the child, were clear. In the case of two fathers on the birth certificate the court also considered that the certificate had already been recognized in another EU country (Spain).
4. Is there a legal definition of the term “surrogacy”? (please specify) No
13. Who is recognised as the legal parent(s) of a child born following surrogacy? There are no specific provisions in the Children Act or in the Adoption Act with regard to legal parentage for children born by a surrogate mother. The woman who has given birth to the child shall be regarded as the mother. Maternity can only be transferred by means of adoption. Paternity may be established according to the provisions in the Children Act. If paternity is not established pursuant to the pater est rule, a man may acknowledge paternity. Paternity shall be acknowledged in writing either in the notification of birth or by appearing in person before i.a. the National Register, the Norwegian Labour and Welfare Service (NAV), an embassy/consulate, a midwife/doctor at an pregnancy check-up (in Norway). Acknowledgement is valid if the mother has accepted it in writing, or when the acknowledgement is given by the person whom the mother has named as the father. Paternity may also be established/changed by a court order, or changed according to a decision by the authorities. In individual cases, paternity established abroad may be recognized in Norway (strict conditions)
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes. General rules for adoption will apply if the parents of a child wish to transfer parentage.
15. Is the existence of a genetic link required for establishing paternity/maternity? No
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
Not applicable. Only the parents of the child are mentioned in the birth certificate.
a. surrogate mother
b. oocyte donor
c. sperm donor
d. intended mother
e. intended father
17. Are foreign birth certificates in surrogacy cases registered in your country Only when the child is born on the territory of the State.
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) NA
b. other criteria (please specify) NA
8. Can the surrogate also be the oocyte donor? NA
1. Is surrogacy regulated by a specific law in your country? No specific law, but specific provisions in more general laws
2. Is surrogacy regulated in another way? (please specify) Yes.
Surrogacy is not allowed in Spain, although it is recognized as an assisted reproductive technology in the Law 14/2006 on Assisted Human Reproduction Technologies (LTRHA) approved in 2006.
This Law declares null and void any contract agreement of surrogate motherhood conducted by a woman who refuses the filiation in favour of the contracting part or of a third party beneficiary, no matter it is with or without remuneration. It also lays down that filiation of children born by surrogate motherhood is determined by birth and that the fatherhood claim of the biological father remains possible.
Although the law in general seems to be very innovative and according to the critics, it is one of the most permissive regulations in the world, in relation to surrogate motherhood it takes a conservative character.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. It is defined in the LTRHA as surrogate gestation: gestation, with or without price, in charge of a woman who refuses motherhood filiation in favour of the contracting part or of a third party beneficiary.
18. Is there:
a. any public discussion about the topic NA
b. planning of new regulation at national level NA
19. Please specify any additional relevant aspects which were not mentioned. NA
1. Is surrogacy regulated by a specific law in your country? Surrogacy is prohibited in Switzerland (see Art. 119 para 2 lit d Swiss Constitution; Art. 4 of the Swiss Reproductive Medicine Act, RMA)
2. Is surrogacy regulated in another way? (please specify) No.
The case law of the Swiss Federal Supreme Court governs the conditions for recognition of parent-child relationships resulting from surrogate motherhood.
Article 119.2 of the Swiss Constitution also contains relevant information: RS 101 - Federal Constitution of the Swiss Confederation... | Fedlex (admin.ch)
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. A number of cases concern the legal status and adoption of children born through surrogacy abroad (in the United States, for example).
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. Article 2, paragraph k, of the Federal Law on Medically Assisted Procreation reads as follows: "surrogate mother: a woman who agrees to carry a child conceived by means of a medically assisted procreation method and to hand it over permanently to a third party after the birth;".
1. Is surrogacy regulated by a specific law in your country? No.
In part. There is no overarching law regulating surrogacy and no surrogacy regulator, as such. Legislation does, however, make commercial surrogacy arrangements illegal and recognizes altruistic surrogacy.
The procedures for setting up an arrangement for a woman to act as a surrogate for another party are subject to the provisions of the surrogacy arrangements act 1985.
Surrogacy agreements between the surrogate mother and the commissioning persons are not enforceable by law. Provisions for transferring legal parenthood from the surrogate to the intended parents are covered by the Human Fertilisation & Embryology Act 1990 (as amended 2008).
2. Is surrogacy regulated in another way? (please specify) Yes. The Human Fertilisation and Embryology Act 1990 (as amended 2008) governs treatment involving the use of donated gametes or in vitro fertilisation. The Act would also apply to surrogacy arrangements where these procedures are involved, including an assessment of the welfare of any child that might be born as a result of the treatment and any existing children that might be affected by the birth.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. In May 2016, a ruling in the Family Division of the High Court of Justice for England and Wales determined that single people can apply to be recognized as the legal parents of a child following a surrogacy arrangement. The law was subsequently changed in December 2018 to allow an application from an individual, subject to conditions, including that he/she is genetically related to the child.
4. Is there a legal definition of the term “surrogacy”? Yes. Two definitions (of Surrogate mother and Surrogacy Arrangement) in the Surrogacy Arrangements Act 1985 cover this:
England, Wales and Northern Ireland.
“Surrogate mother” means a woman who carries a child in pursuance of an arrangement.
An arrangement is a surrogacy arrangement if, where a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.
Scotland
“Surrogate mother” means a woman who carries a child in pursuance of an arrangement.
An arrangement is a surrogacy arrangement if, were a woman whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes, mother is the woman who gave birth to the child
b. oocyte donor No
c. sperm donor Yes, but if the mother is married, her husband will be considered the father by pater-est. A sperm donor (and intended father) may be able to recognize the paternity instead of the husband.
d. intended mother No
e. intended father No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)?
Not directly. See also answer to question number five.
If the intended father is also the genetic father (e.g. sperm donor), he will be recognized as legal father of the child unless the surrogate mother is married and there has not been a paternity case, where the husband of the surrogate mother declares that he is not the father of the child.
A spouse or cohabiting partner may apply for a stepchild adoption. However according to Danish regulation, the spouse or partner must have been living with the child for 2½ years before a stepchild adoption may be granted and an adoption decree shall not be issued if any of the parties required to consent to the adoption are to give or receive any kind whatsoever of payments or consideration, including compensation for loss of earnings.
If the intended father is not recognized as a legal father the only option to become legal parent of the child is an adoption, which must be in accordance with the 1993-Hague Convention on Intercountry Adoption, and therefore is difficult.
15. Is the existence of a genetic link required for establishing paternity/maternity? No.
In Denmark maternity is established by mater est, which means that the woman who gives birth to the child is the legal mother.
Paternity can be established in three different ways:
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor Yes and no
d. intended mother No
e. intended father Yes and no. If the intended father is also the genetic father, it is possible to recognize the paternity (cf. answer to question 13).
17. Are foreign birth certificates in surrogacy cases registered in your country No. According to Article 30 of the Children Act, a woman bearing a child who is the result of medically assisted procreation shall be considered the mother of the child (mater est). In Denmark a foreign birth certificate that indicates another person than the birth mother, as parent of the child will not be recognized. If the birth certificate also mentions a father, that paternity will be recognized if the man is also the genetic father of the child.
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother No, unless she is considered guilty of unlawful arrangement of adoption (Chapter 25, Section 3c of the Criminal Code, see excerpt below).
b. intended parent(s) No, unless they have paid or promised to pay remuneration for the gametes or embryos to be used in violation of Section 21 of the Act of Assisted Fertility Treatments, or they are considered guilty of unlawful obtaining of consent to adoption or unlawful arrangement of adoption (Chapter 25, Sections 3b and 3c of the Criminal Code, see excerpts below).
c. gamete donor. No, unless he or she is considered guilty of unlawful obtaining of consent to adoption or unlawful arrangement of adoption (Chapter 25, Sections 3b and 3c of the Criminal Code, see excerpts below
d. facilitator. According to Section 35 of the Act on Assisted Fertility Treatments (1237/2006), a person who intentionally provides assisted fertility treatment although there is reason to presume that the child will be up for adoption, shall be sentenced to a fine for assisted fertility treatment offence. The facilitator is also more likely to be considered to violate the ban on remuneration (Section 35, paragraph 2 of the Act on Assisted Fertility Treatments) and to be considered guilty of unlawful obtaining of consent to adoption and unlawful arrangement of adoption (Chapter 25, Sections 3b and 3c of the Criminal Code).
12. Subject to the applicable law, are you aware of the following unlawful practices in your country? No
a. remuneration of the surrogate
b. remuneration of the gamete donor
c. advertising for surrogacy services
d. remuneration of facilitators
e. any other unlawful practices (please specify)