Going Dutch: The Netherlands Is On The Verge Of Recognizing Four-Parent Families And Surrogacy Protections

Is this a dystopian novel, or merely an effort to protect children from legal uncertainties?

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Families are complicated. Some families are especially so. In response, governments are responding to societal changes that require legal lines to be redrawn around children and their parents. Currently, the Netherlands is taking a hard look at new family structures, and how best to protect parents and children. After months of negotiation, the governing coalition parties have reached an agreement, as described in a letter to Parliament. The coalition’s letter proposes that the government should provide certain protections in gestational surrogacy arrangements and, separately, should provide some recognition of rights for non-biological parents. In some cases, this could mean up to four “parents” would have legal rights to one child. Is this a dystopian novel, or merely an effort to protect children from legal uncertainties?

How Many Parents Can One Child Have?

The Netherlands wouldn’t be the first governmental entity to recognize certain parental rights for up to four people. For instance, Ontario, Canada, passed a parentage law in 2016 that allows for up to four parents to a child. And based on one reading of recent New York State case law, the Empire State arguably permits up to six parents to a single child. The proposed legal changes in the Netherlands are intended to address current problems whereby step-parents, foster parents, and other non-biologically related persons acting as parents, nevertheless have no rights to a child.

I spoke with Wilma Eusman, a Dutch attorney with specialized knowledge in the area of assisted reproductive technology and family protection. Eusman noted that she was part of a committee assembled in 2016 to provide recommendations to Parliament to improve family law in the Netherlands.

Eusman explained that the proposed Dutch law would recognize non-biological “custodial parents,” who will not have the same rights as biological parents. Instead, non-biological parents could be granted partial custody, meaning they would have the right to attend medical appointments and school events. However, at the same time, such custodial parents would not have the right to choose the child’s school or doctor.

Despite the expansion of legal recognition for non-biological parents, a Dutch LGBTQ advocacy group has expressed concern that the partial custody parent will be a “lesser” parent status, and the law still only permits traditional biological parents to be full parents. That’s true regardless of whether there are two, three, or four parents. Eusman echoed these concerns, and noted that on this point her committee had argued for full parental rights for non-biological parents, pointing to studies showing that there is no difference to the child to be raised by a non-biologically-related parent versus a biologically-related parent. But Eusman noted that to move forward, the coalition compromised with political parties wishing to preserve more traditional notions of parenthood.

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Surrogacy Support

The coalition letter also expressed an agreement as to increased protections and recognition for surrogacy arrangements. On this point, Eusman applauds the coalition in following the recommendations of the committee. As the law currently stands, Dutch intended parents in surrogacy arrangements cannot be recognized domestically as the legal parents of their child until after the birth of the child. The letter describes that legal recognition should take place sooner, with a judge ruling on the legal parentage of a child to a surrogacy arrangement prior to conception, for both domestic and international arrangements, so long as certain requirements are met.

No Compensated Surrogacy

“Commercial surrogacy” — specifically understood in the Netherlands as the payment to the surrogate of more than reimbursement for actual incurred expenses — is still prohibited in the proposed legal changes. Eusman notes that it is not yet clear how international arrangements involving payments “more than reimbursement for actual expenses” will be handled. While some have defended the ban as a way to prohibit “baby-selling,” the ban is potentially inconsistent with the fact that egg donors in the Netherlands are permitted to receive compensation for their pain and suffering. But the letter does not address that inconsistency.

Surrogate Registry

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The letter further provides that a surrogacy “registry” will be established whereby all surrogates must register in order to allow the children born of surrogacy to know their birth history. This registry shall be in addition to the already existing registries for egg and sperm donors, preserving donor-conceived persons rights to know their genetic history. While I am all for openness, especially as to children understanding where they come from, this seems a bit invasive to require a kind-hearted woman who agrees to carry a child for another to then be required to be part of a government registry. But, to be fair, government registries are a foreign concept for Americans.

Surrogate Right To Change Her Mind

The coalition letter further provides that the surrogate will have the right until birth to ask the court to terminate the agreement, a provision I found particularly concerning. This would open the door for the baby to become the surrogate’s, even at the last minute. However, Eusman explains that the surrogate would need to have very good reasons for her to change of mind, such as discovering that the intended parents are convicted child abusers. That would, indeed, be terrible. By contrast, even in controversial cases of surrogacy in the United States, the courts are generally inclined to support the genetic and intended parent as the legal parent of the child.

Despite the flaws, Eusman reports that she is pleased to see progress in the country, and forward movement in the legal support for modern Dutch families. I mean families in the Netherlands. I mean families in Holland. #SoConfusing


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.