RESEARCH SUMMARY
1.
Introduction
In recent years increasing attention has been paid to commercial surrogacy and the
unlawful placement of children in The Netherlands. This is true both in terms of the
parties who wish to form a family by means of surrogacy, as well as the authorities that
are confronted with the regulation of such situations. The possibilities offered through
the internet have played an important role in the increased awareness of the
opportunities, as well as the problems. On the one hand, information is readily
accessible with respect to the possibilities for adoption and surrogacy in other countries.
On the other hand, it has also become much easier for interested parties to match supply
and demand. Boundaries would appear nonexistent. Moreover, continuing
developments in medical reproductive techniques ensure increasing possibilities to
conceive a partially genetically related child, for example with the assistance of hightechnological surrogacy arrangements.
Both the Central Authority for International Adoption and the Dutch Children Protection
Board have been made aware of a number of cases concerning commercial surrogacy
and the unlawful placement of foreign children in The Netherlands. Many of these cases
have also received broad media attention. A number of Belgian cases have attracted
particular attention in The Netherlands. The Dutch government operates a very
restrictive policy with respect to commercial surrogacy. Incidents in recent years have
led to numerous parliamentary questions being raised in the Second Chamber of the
Dutch Parliament. The Minister of Justice has responded to the Dutch Parliament by
commissioning research to be conducted into the nature and scope of the problems
related to commercial surrogacy and the unlawful placement of children. The aim
hereby is to ensure that more clarity can be gleaned as to what actually occurs in the
countries where the possibilities are greater than in The Netherlands, as well as
providing information with regards to the Dutch response upon the return of the
commissioning parents to The Netherlands.
From April 2010 until January 2011, researchers of the Utrecht Centre for European
Research into Family Law (UCERF) at the Molengraaff Institute for Private Law of
Utrecht University conducted the research commissioned by the Minister of Justice. The
following research questions were posed:
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What is the nature (and scope) of commercial surrogacy, the unlawful
placement of foreign children and the combination of the two?
To which countries do Dutch commissioning parents travel and how are these
issues legally regulated abroad?
To what extent are the Dutch rules followed and in which situations may
problems arise in The Netherlands as a result of more liberal laws abroad?
Are there other European countries with similar problems and how are these
problems solved there?

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In answering the first research question, a study has been made of the phenomenon
(fenomeenstudie). On the basis of this orientation study, four jurisdictions emerged as
relevant in providing an answer to the second research question, namely California
(USA), India, Greece and Ukraine. The third question was answered using a literature
and case-law analysis, alongside which interviews were conducted in order to gain more
insight into the operational response to the problems encountered. The fourth question
has been answered using a questionnaire sent to a number of experts from eight
different European jurisdictions. The responses provide relevant information on the
legislative and judicial response to the problem of commercial surrogacy and the
unlawful placement of children in other jurisdictions.
In legal literature a distinction is drawn between different types of surrogacy. Hightechnological surrogacy makes use of IVF and in which a reproductive expert must
always be involved. This form of surrogacy offers commissioning parents the possibility
to conceive a child that is genetically related to both commissioning parents. This is not,
however, a requirement. Alongside high-technological surrogacy, low-technological
surrogacy is also possible. In this case the surrogate is always genetically related to the
child. The commissioning father may or may not be genetically related, depending upon
whether the couple has used his sperm or that of a donor. In low-technological
surrogacy the egg will be fertilized by means of artificial insemination. Furthermore,
parties may also be involved in a surrogacy arrangement, despite the fact that the child
was conceived by natural means or self-insemination. In this final scenario the child
could be genetically related to the surrogate and her husband. Another important
distinction concerns the difference between altruistic and commercial surrogacy. In
general, it would appear difficult to draw a distinct line between these two forms of
surrogacy arrangements. In both cases, financial payments will be made. However, the
financial payments in commercial surrogacy arrangements are often (if not always)
concerned with profit, whereas in altruistic surrogacies the main object is to help
another couple have a child.
2.
Structure of the research report
The chronological path travelled by commissioning parents involved in a surrogacy
arrangement has been decisive in determining the structure of this report. Firstly, the
legal position of the commissioning parents in The Netherlands is discussed. Thereafter,
attention is paid to the legal situation in the countries where commissioning parents
travel to in order to undergo surrogacy techniques. The report analyses the position of
all parties involved: the commissioning parents, the surrogates and the children. Finally,
this research follows the children upon their return to The Netherlands. The central
question is whether the legal position obtained abroad is recognised in The Netherlands.
Surrogacy arrangements and the unlawful placement of children are also evident in
other European jurisdictions. The approaches and solutions from elsewhere could be
used in answering the question whether the law in The Netherlands should or must be
amended.
Mindful of the path followed by commissioning parents involved in a surrogacy
arrangement abroad, the research report has been divided into the following sections:

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Section I:
Section II:
Section III:
Section IV:

Introduction
View of The Netherlands: What is possible here?
Going abroad: Which possibilities are available abroad?
Coming back: How does the child come to The Netherlands and
what is its legal status here?
Section V:
Which possibilities are available in other European jurisdictions?
Section VI: Comparable tables
Section VII: Research summary
3.
Scope of the problem
How often commercial or altruistic surrogacy arrangements and the unlawful placement
of children in The Netherlands occurs is difficult to determine. Equally difficult to assess
is the scope of the problems arising as a result of such activities. From case-law analysis
and interviews with various experts engaged in front-line work in the field of surrogacy
and the unlawful placement of children, for example the Municipal Population Register
(GBA), the Civil Registrar, the Immigration and Naturalisation Service, the Central
Authority for Adoption, the Dutch Embassies abroad and the Child Protection Board.
From a number of interviews it is clear that after a case arises by one of the abovementioned organizations, this is subsequently reported to the National Office of the
Child Protection Board. From other interviews, it would appear that the Central
Authority for Adoption is informed (who in turn forwards these cases to the Child
Protection Board). As a result of the absence of a clear reporting structure, it is difficult
to ascertain the exact numbers concerned.
Reports of unlawful placements are made to the National Office of the Child Protection
Board through the ASAA locations (Afstand, Screening, Adoptie en Afstamming (The office
responsible for issues arising from giving up children, screening, adoption and
parentage)). The local ASAA office is subsequently responsible for investigating whether
there is indeed a case of unlawful placement or unlawful surrogacy. From information
received from the member of the Child Protection Board in the Advisory Commission for
the Research Team, it would appear that on average approximately 10 cases are
reported annually to the Child Protection Board. Moreover, the Central Authority has
also indicated that since 1st April 2009, it has been made aware of 11 cases involving the
unlawful placement of children.
Alongside these figures, it is clear from a thorough case-law analysis that cases of
surrogacy do reach the courts on a somewhat regular basis. This includes cases that are
solely connected with The Netherlands, as well as cases linked to foreign jurisdictions,
such as California or Ukraine. With respect to the pure Dutch surrogacy cases, it is
known the Medical Centre of the Free University of Amsterdam receives on average 20
requests annually from those wishing to conceive a child using a surrogate. Only
approximately 10 cases annually actually lead to a course of treatment. On 31 May 2010
three children were born after IVF surrogacy in this Medical Centre and two more
children were expected. The first surrogacy expert centre which existed between 19972004, screened 202 of the 500 couples who expressed an interest in IVF surrogacy. Only
35 couples were given IVF surrogacy treatment, which resulted in the birth of 16

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children. It would appear difficult to obtain a clear impression of the exact numbers
involved in surrogacy (whether or not commercial) and the unlawful placement of
children. The impression remains that some of these cases simply never reach the
surface.
4.
Conclusions per section
The underlying reasoning underpinning the current state of Dutch law in this field is
that commercial surrogacy and the unlawful placement of children is undesirable.
Various measures have been created to combat both situations, both in the field of the
criminal law (Articles 151(b) and 151(c), 225, 236, 278, 279 and 442a Dutch Criminal
Code) and immigration law. The best interests of the child plays an important role in this
respect, both at micro-level (the individual child concerned), as well as at a macro-level
(prevention of the undesirable commercialization of baby and child-trafficking for
family formation purposes). The interests of the surrogate and the commissioning
parents are also relevant in these policy decisions. This reasoning surfaces in a number
of different places through this report. Hereunder follows a summary of the research
results per section.
Section II of the research report investigates the situation according to Dutch law and
comprises two sub-sections: a section on criminal law and a section of civil law.
The criminal law policy discussed in Section II.1 is focused on the discouragement of
surrogacy. This is partly achieved through the criminalisation of the mediation by means
of a professional practice or company and the publication of supply and demand
requests concerned surrogacy arrangements. Furthermore, the placement of a child in
another family without prior satisfaction of the requisite reporting requirements is
furthermore criminal in certain circumstances according provisions in the Dutch
Criminal Code (Wetboek van Strafrecht) and the Foster Care Children Act
(Pleegkinderenwet). Alongside these penalties, other criminal sanctions are also
discussed that, although not specifically applicable to surrogacy or unlawful placement,
can be invoked in such situations. An analysis of the legal databases in the field does,
however, indicate that there are very few actual prosecutions. However, it is extremely
difficult to obtain a clear impression of why few of the cases reported ultimately lead to
charges being brought or penalties levied. Nevertheless, no real conclusion can be
attached to this factual situation, as the causes for the low number of prosecutions are
diverse and have not been able to be identified.
Section II.2 focuses on the legal position of the surrogate and the commissioning
parents with respect to the child. Dutch law does not specifically regulate the
consequences of surrogacy in the field of parentage. Accordingly, the regular rules in the
field of parentage, parental responsibility and child protection apply in these cases. The
legal position of a child born as a result of surrogacy is uncertain and dependent upon a
significant number of factors that in and of themselves have little relevance to the
surrogacy arrangement. The surrogate is always regarded as the legal mother of the
child, regardless of whether she has also provided the genetic material for the birth. If
the surrogate is married, then her husband is also automatically the child’s legal father.
The transfer of parental rights to the commissioning parents is difficult and the result

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dependent upon a variety of different circumstances. Adoption by at least one of the
commissioning parents will also be necessary prior to the final transfer of parental
rights to both commissioning parents. From research into supervised high-technological
surrogacy, it would appear that in cases in which surrogate and commissioning parents
are a priori screened and the genetic material of the commissioning parents is used,
problems are seldom encountered. The law with respect to the legal transfer of parental
rights from the surrogate family to the commissioning family is also not catered
specifically, meaning that the normal rules of parentage law will apply in these cases too.
Commissioning parents who do not wish to use the supervised high-technological
surrogacy route within the Dutch legal context run exceedingly high risks.
Tension can exist between the wishes and interests of the commissioning parents on the
one hand and the surrogate parents on the other, which can often lead to conflict. Giving
a child up after birth can have unexpected emotional consequences beyond the
information and guidance provided. The successful completion of the surrogacy path
requires co-operation up until the point when parental rights have been transferred to
the commissioning parents. In conflict situations, there is a risk that the child will
ultimately not be placed in the family of the commissioning parents, dependent upon the
moment at which the conflict arises. Furthermore, one cannot predict the outcome of a
given case. At various moments, judicial intervention is required, and it is not always
clear which conclusion a judge will reach in a given case. Even in cases where there is no
disagreement between the parties, it cannot be a priori predicted whether the
commissioning parents will be vested with parental authority.
Section III of the research comprises two sub-sections: a study of the phenomenon
(fenomeenstudie) (Section III.1) and an in-depth study into four jurisdictions where
Dutch couples may travel for surrogacy arrangements (Section III.2). The first section
makes it clear to which countries Dutch couples could travel in order to conceive a child
via a surrogacy arrangement. This knowledge is obtained via two research methods.
Firstly, an internet search using search terms. Each search term led to twenty links
which were subsequently researched to discover commercial surrogacy clinics. These
clinics were subsequently organized per jurisdiction. Four countries returned regular
results in this internet research, namely Greece, India, Ukraine and the United States of
America. Secondly, use was made of information obtained via internet forums. These
forums were analysed to determine whether other countries or clinics were repeatedly
mentioned.
Section III.2 delves further into the legal systems of the four aforementioned
jurisdictions, namely Greece, India, Ukraine and the United States of America (more
specifically California). It would appear from these country reports that foreign
commissioning parents are entitled to partake in the surrogacy facilities offered, varying
from the use of the genetic material of both commissioning parents to the use of the
genetic material of two donors.
If the Dutch commissioning parents leave for one of these jurisdictions to make use of
the surrogacy possibilities, the Dutch legal system will be confronted with the situation
upon their return. The returning Dutch commissioning couple will naturally be provided

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with various legal and non-legal documents which they will have to present to various
Dutch governmental institutions.
Section IV focuses on the return to The Netherlands. A number of different
circumstances are conceivable in which the parentage between a child and the
commissioning parents maybe be at issue: a request may be made to acquire Dutch
nationality, a request for registration of a foreign birth certificate in the local municipal
population register, a determination of child maintenance or a question related to
inheritance law. The question how Dutch law ‘reacts’ to the situation created abroad can
arise either in The Netherlands or abroad at a Dutch consular office (for example with
the passport application). Furthermore, the various requests and applications can be
made using a variety of different documents, including an original birth certificate, an
amended birth certificate, a judicial decision or an adoption decision. Despite the fact
that these questions can arrive on a diverse variety of ‘desks’ or ‘offices’, all civil
servants will always the same rules of Dutch law.
The legal relationship the commissioning parents profess to have created with the child
is of crucial importance. The following options can be identified:
1. determination of parentage by operation of law (Section IV.2)
2. recognition of parentage by means of adoption (Section IV.3)
3. determination of a foster care arrangement for the child (Section IV.4)
In Section IV.2 attention is paid to two different situations: the commissioning parents
indicate that parentage has been created (1) by means of a decision of a foreign judge or
(2) by means of a legal fact (for example, the birth of a child subsequently recorded in a
birth certificate) or legal act (for example a recognition by a commissioning father). In
the first situation, Article 9, Private International Law (Parentage) Act (Wet
conflictenrecht afstamming, Wca) is applicable, in the second situation Article 10. With
respect to foreign judicial decisions, few problems have arisen thus far concerning
surrogacy arrangements or unlawful placements. With respect to the second category,
case law would appear to indicate that some birth certificates are refused recognition on
the basis of non-conformity with Dutch public policy, as laid down in Article 10(1) Wca,
in combination with article 9(1)(c). Although up until now it is clear that a birth
certificate upon which no mother is recorded will be regarded as contrary to Dutch
public policy, other cases are far from clear. This uncertainty exists with respect to
original birth certificates in which the genetic mother is recorded instead of the
birthmother, or where the non-genetic commissioning parents are recorded on the birth
certificate. Nevertheless, children do arrive in The Netherlands with such birth
certificates. Once these children have remained in The Netherlands for some time, it is
very difficult for the State to remove the child from the commissioning parents, due to
the weight given to the best interests of the child and the protection of the family life
created between the child and the commissioning parents.
In Section IV.3 attention shifts to the situation in which Dutch commissioning parents
bring a child into their family by means of adoption. This is possible with or without the
use of a surrogate arrangement abroad. Upon arrival in The Netherlands, the situation
will be judged according to the immigration rules concerning family reunification. The

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procedure that needs to be followed is dependent upon the origins of the child. Citizens
from certain countries are required to be in possession of permission to provisionally
reside in The Netherlands (machtiging tot voorlopig verblijf, mvv) prior to travel to The
Netherlands. Subsequently, the scope of the adoption laws is researched with specific
attention being paid to the definition of the phrase “with a view to adoption”. Thereafter,
a distinction is drawn between three different categories of cases:
1. adoptions according to the rules of the Hague Adoption Convention 1993
2. adoptions that do not fall within the scope of the Hague Convention and:
a. in which the commissioning parents have their habitual residence in The
Netherlands; and
b. in which the commissioning parents have their habitual residence outside
the Netherlands
The relevant conditions are analysed first, for example the adoption decision must have
been established by a competent authority and the aspirant-adoptive parents must be in
possession of a permission to adopt in principle (so-called beginseltoestemming). Four
different factors would appear to play a role when determining the effects attributed to
a breach of these conditions, namely the best interests of the child, the nature of the
breach of the statutory provisions, the stability of the aspirant-adoptive parents and the
place of residence of the child.
In Section IV.4 the situations in which commissioning parents living in The Netherlands
bring a child to The Netherlands with a view to fostering the child, regardless of whether
they have previously made use of a surrogacy arrangement. The law on immigration
determines which conditions need to be satisfied in order for the child to legally enter
and remain in The Netherlands. The strict conditions for the placement of a foreign child
ensure that this route is seldom chosen by commissioning parents. If commissioning
parents do opt for this route and they satisfy the necessary immigration requirements,
they must ensure that they make inform the Mayor and Aldermen in writing within one
week of their arrival that a foster child is residing with them (art. 5(1) Foster Care
Children Act, Pleegkinderenwet). If the child is younger than 6 months then the foster
parents are also obliged to apply for permission for the placement from the Child
Protection Board (Article 1:241(3) Dutch Civil Code).
To gain insight into the alternative solutions for the problems analysed in this research
project the law of other European jurisdictions has also been examined. In Section V,
the solutions proffered in eight other European jurisdictions with respect to commercial
and altruistic surrogacy have been analysed. The jurisdictions comprise Belgium,
England, Germany, France, Norway, Poland, Spain and Sweden. In these country reports
answers are provided as to whether specific rules exist regulating surrogacy and which
measures have been adopted to ensure the enforcement of those rules.
Section VI concludes the substantive section of this research report with comparable
tables based on the information provided in the eight European country reports. In this
respect it is interesting to note that with respect to certain questions nearly all those
countries researched respond in an identical manner (for example in seven of the eight
jurisdictions a surrogacy contract is regarded as null and void), whereas answers to

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other questions are characterized by their diversity (for example the possible criminal
provisions and sanctions with respect to surrogacy).
5.
Conclusion
The legislative policy in this field is consistent with regards the discouragement of
surrogacy and non-facilitation of the transfer of parental-rights to the commissioning
parents. There has been no alteration in this policy since the 1980s, despite changed
social attitudes (for example towards the acceptance of high-technological surrogacy
and the increasing rate of unwanted childlessness). An important conclusion is that both
Dutch substantive law, as well as Dutch private international law provide no clear
answers with respect to many questions surrounding surrogacy and the unlawful
placement of children. Accordingly, the position of a child born by means of a surrogacy
is legally unclear, and uncertainty exists with respect to he legal position of the
commissioning parents and the surrogate parents. The agreements made between the
parties concerning the surrogacy and the transfer of the child cannot be legally enforced
and it is not predictable how a judge will decide in any given case, if the surrogate
refuses to give up the child.
Numerous questions also remain unanswered with respect to the recognition of
parentage created abroad by means of surrogacy. The legal uncertainty apparent in
Dutch law at this time is caused on the one hand by the policy of discouragement
towards surrogacy that has also been reflected in criminal sanctions, whilst, on the
other, a small group of people are able to make use of surrogacy arrangements, without
this being taken into account in the law of parentage or adoption. Furthermore, it is also
difficult to determine the scope of occurrence of surrogacy and any connected unlawful
placements of children in The Netherlands. The Child Protection Board and the Central
Authority for Adoption probably only receive a section of the surrogacy cases that occur
in The Netherlands or abroad.
On the basis of this research into surrogacy and the unlawful placement of children, in
which thirteen jurisdictions have been analysed, the following conclusions can be
reached:
•

•
•

Surrogacy in The Netherlands has not been extensively regulated. The
criminal law contains a number of provisions specifically related to surrogacy.
Parentage and adoption law do not contain any specific provisions concerning
surrogacy.
No clear distinction has been drawn in Dutch law between altruistic and
commercial surrogacy.
The following aspects remain unclear:
o The role genetics plays with respect to the Dutch parentage laws;
o The status of a surrogacy contract and the various provisions that can be
included in such a contract;
o Whether the recognition of an original foreign birth certificate upon which
the birthmother is not recorded is to be regarded as contrary to public
policy;

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o Whether an original foreign birth certificate upon which two parents are
recorded, both of whom are not genetically related to the child, should be
regarded as contrary to public policy;
o Whether the scope of the Wobka (Placement of Children with a view to
Adoption Act) should be extended to include cases in which a child has
been taken into a family without a view to adoption, but for example with
a view to kafala or foster care;
o Whether the Wobka should always be applied in surrogacy cases;
o What the consequences are of breach of the relevant legislation in
international cases.

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