Government Committee: Amend the legislation on parentage and custody

Every child has an interest in having his or her parentage regulated as soon after birth as possible. The current variety of family forms in Dutch society means that legislation and policy in the field of parentage and custody needs to be amended.

This is the opinion of the Government Committee on the Reassessment of Parenthood in the report ‘Child and Parents in the 21st Century’, which was presented today by Mr Aleid Wolfsen (Chair of the Committee) to the Minister of Security and Justice, Mr Van der Steur.

Legal parentage

Legal parentage deals with questions such as: whom does a child inherit from, whose surname should a child have and whose nationality can a child obtain? A legal parent-child relationship provides for more certainty that the parents and the child will remain connected with each other as the child grows up.

Increasing diversity in family forms

A few decades ago, legal parentage was quite simple. Genetic parentage and legal parentage usually coincided: children were usually born within a marriage of a man and a woman.

Different family situations are more present today than in the past: one-parent families, patchwork families, families with parents of the same-sex (rainbow families), multi-generational families and families in which multiple people care for and raise the children.

The Government Committee wishes to legally protect the interests of the children in all of these family forms. Accordingly, the Government Committee has proposed a number of legislative amendments. For example, the Committee wishes to introduce multi-parentage (more than two legal parents, meerouderschap), multi-parenting (more than two persons vested with parental authority, meeroudergezag) and a Dutch regulation for surrogacy.

Maximum four legal parents

One of the conditions for legal multi-parentage should be that a child is only able to have a maximum of four legal parents, spread across a maximum of two households. Prior to the conception of the child, the parents would need to submit a multi-parentage contract to the court, including agreements regarding inter alia the tasks related to the care and upbringing of the child, the main place of residence of the child, the division of the financial obligations and the child’s surname. A guardian ad litem would be appointed for the future child, who would advise the court on the judiciousness of the surrogacy arrangement. It is important that there is a clear relationship between all the parents on the one hand and the child on the other. Furthermore, the Government Committee advises that multiple persons should be able to be vested with parental authority over the child (multi-parenting, meeroudergezag). In this context, the same conditions should be applied as those imposed on multi-parenthood.

Regulation of surrogacy

A statutory system for surrogacy is also regarded as necessary. Surrogacy within the Netherlands does not occur very frequently, but appears to be on the increase around the globe. Intended parents from the Netherlands direct their attention to surrogacy abroad, as a result of the absence of possibilities in the Netherlands. Certain disadvantages are, however, associated with this choice: in many countries the position of the surrogate mother is unsatisfactorily protected, the distinction between surrogacy and child selling is not always clear and the threat of child trafficking is present. 

The Government Committee wishes to provide for a statutory regulation that guarantees that the surrogacy arrangement is conducted with judiciousness and respect for the human dignity of the child and the surrogate mother. The regulation should provide certainty from the moment of the birth of the child, with respect to the legal parents, the nationality, the name and those to be vested with parental authority.  Both the surrogate mother and the intended parents are thus provided certainty with respect to their position and responsibilities with respect to the child. The child should also be able to discover his or her origin story in the future. The surrogate mother also has an interest in being counselled and provided with independent information concerning the psychological and legal consequences of surrogacy. Her medical and financial risks need to be sufficiently covered. After all, she assumes a substantial responsibility for a child that she will ultimately not care for or raise. 

The Government Committee also advises that alongside the regulation of surrogacy, to provide for the recognition of the legal position of the children born as the result of a surrogacy arrangement abroad. The same safeguards for the surrogate mother and the child should be imposed in this regulation as the legislation applicable in the Netherlands.

Right to information regarding origin story

Regulations regarding multi-legal parentage and surrogacy create a situation in which it is not always clear to whom a child is genetically related. The information regarding his or her origin story, therefore, becomes even more important. This could relate to the details of a sperm donor, egg donor or embryo donor, the details of a surrogate mother, or the details of institutions or organisations that have provided counselling or medical assistance. A child has the right to this information.

Core elements of good parenting

The right of a child to have access to his or her origin story has been expressed by the Government Committee in seven core elements of good parenting. Together with the UN Convention on the Rights of the Child, these constitute the yardstick for the proposed amendments to law and policy. These core elements are: (1) an unconditional personal commitment, (2) continuity in the child-rearing relationship, (3) care for bodily welfare, (4) raising to independence, and social and societal participation, (5) organising and monitoring the upbringing of the child in the family, in the school and in the public setting (the three caring environments), (6) the creation of a parent-child identity and (7) ensuring for contact moments with persons who are important to the child, including the other parent.

Members Government Committee

The members of the Government Committee on the Reassessment of Parenthood are: Mr A. Wolfsen, chair; Professor I.D. Beaufort, Professor of Medical Ethics at the Erasmus University Rotterdam, Professor D.D.M. Braat, Professor of Obstetrics and Gynaecology, as well as Procreational Medicine at the Radboud University Nijmegen; Ms W.J. Eusman, attorney-at-law in Amsterdam, Professor J. Hermanns, Emeritus Professor Pedagogy at the University of Amsterdam, currently advisor youth policy in H&S Consultancy; Dr F. Ibili, Court Auditor at the Dutch Supreme Court, Mr M.J.C. Koens, at the moment of appointment Senior Judge at the Court of Appeal ’s-Hertogenbosch, currently substitute senior judge at the Court of Appeal The Hague; Professor T. Liefaard, Professor of Children’s Rights at Leiden University ; Prof A.J.M. Nuytinck, Professor of Private Law, in particular family and inheritance law at the Erasmus University Rotterdam, and Professor of Civil Law, in particular family law at the Radboud University Nijmegen, and Dr A. Poortman, Senior Lecturer of Sociology at Utrecht University.