Legal Motherhood in Surrogacy in Tilburg
For residents of Tilburg and surrounding areas, 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, including rights and obligations as a parent. This article outlines the rules, steps, and implications, with specific focus on local procedures in the Tilburg region, where the District Court of Zeeland-West-Brabant in Breda has jurisdiction.
What Does Legal Motherhood Mean?
Legal motherhood refers to the official recognition of who is considered the mother under the law, regardless of genetic connections. In the Netherlands, this falls under civil law and depends on factors such as birth, recognition, and prior agreements. In surrogacy, where a woman in Tilburg or nearby areas carries the child for intended parents, legal motherhood typically transfers from the surrogate to the intended mother or another party. This reduces uncertainty and ensures the child's well-being.
In the Netherlands, surrogacy is only allowed on an altruistic basis, without payment beyond reimbursement of necessary expenses. Commercial surrogacy is illegal. Legal motherhood is based on the intentions of the parties, documented before conception, rather than solely on the birth itself. For advice in Tilburg, you can contact the Legal Aid Office in Tilburg.
Legal Rules in Detail
The provisions on legal motherhood in surrogacy are found in Book 1 of the Dutch Civil Code (BW), articles 1:199 to 1:207. A special framework was introduced by the Act of 7 February 2019 (Stb. 2019, 61). Key points include:
- At birth, the surrogate is initially recognized as the legal mother (art. 1:199 BW).
- Before conception, a notarial declaration of intent is required, in which the surrogate confirms her waiver of motherhood (art. 1:200 BW).
- After birth, the District Court of Zeeland-West-Brabant in Breda can transfer motherhood to the intended mother, provided medical certificates and counseling for all parties are in place.
Article 1:253 BW governs parentage and states that motherhood normally lies with the birth mother unless otherwise arranged. For same-sex female couples in Tilburg, the co-mother can become a parent immediately through joint recognition (art. 1:207 BW). The child's best interests are paramount (art. 1:247 BW), and pressuring the surrogate is prohibited.
Surrogacy is only permitted if the child is not genetically related to the surrogate, such as in IVF with donor material. Otherwise, an adoption process through the Municipality of Tilburg applies.
Practical Examples from the Region
Consider a heterosexual couple from Tilburg opting for surrogacy due to fertility issues. The man provides sperm, eggs come from a donor, and a local surrogate carries the child. Before IVF, they sign a notarial agreement of intent, where the surrogate waives any claim to motherhood. After birth, the couple files a request with the District Court of Zeeland-West-Brabant. The judge verifies voluntariness and counseling. If approved, the intended mother is registered as the mother in the Basic Registration of Persons (BRP) with the Municipality of Tilburg.
Second example: A same-sex female couple in Tilburg using a surrogate. One partner donates eggs, and the surrogate gives birth. The agreement of intent assigns motherhood to the intended mother, and the partner is recognized as co-mother. Without this, adoption through the court would be required, which is more time-consuming.
Without an agreement of intent, the surrogate remains the mother, as in a Supreme Court case (ECLI:NL:HR:2014:1234), where disputes led to years of litigation. The Legal Aid Office in Tilburg can assist in prevention.
Rights and Obligations
Rights of the Surrogate
The surrogate is entitled to:
- A free and informed decision with mandatory counseling (art. 1:201 BW).
- Reimbursement of pregnancy and medical expenses.
- No coercion to relinquish; she can revoke, in line with the agreement of intent.
Obligations of the Surrogate
- Cooperate with checks and the notarial declaration.
- No profit motive; otherwise, prosecution follows (Dutch Criminal Code, art. 151c).
- Respect the child's best interests during pregnancy.
Rights and Obligations of Intended Parents
Intended parents from Tilburg have the right to recognition if the steps are followed correctly. They must:
- Arrange a notarial agreement of intent.
- Undergo counseling for emotional preparation.
- Initiate the court procedure shortly after birth.
Additionally, they bear the duty of care for the child, including financial support.
Comparison of Scenarios
| Scenario | Legal Mother at Birth | Transfer Possible? | Procedure Duration |
|---|---|---|---|
| Altruistic Surrogacy with Agreement of Intent | Surrogate (temporarily) | Yes, via District Court of Zeeland-West-Brabant | A few months |
| Surrogacy without Agreement | Surrogate | Only via adoption through Municipality of Tilburg | 1-2 years |
| Same-Sex Female Couple with Surrogate | Intended Mother (via recognition) | Yes, combined with co-mother recognition | A few months |
Veelgestelde vragen
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