(Image via Getty)
I had previously assumed the Dutch were just like us, only way better at tulip horticulture. After reviewing the recent proposed surrogacy laws in the Netherlands, however, I know that we are living in entirely different universes.
In April 2020 — which, in COVID-19 time, both feels like yesterday and 20 years ago — the Dutch government published one part of a draft law on surrogacy. That part contained provisions that, while in part differ from most American norms, were largely in line with other European countries’ skepticism over surrogacy.
Part I. New Dutch Surrogacy Standards. The first part of the April 2020 proposed surrogacy legal overhaul in the Netherlands provides some pretty normal protections, at least by American standards. Those include the following requirements for surrogacy arrangements:
- Intended parent(s) and surrogate must have a written agreement. (Of course.)
- Both parties must receive psychological counseling. (Never a bad idea.)
- Both parties must have independent legal counsel. (Good, yes. Attorneys are heroes.)
- The intended parents must be recognized as the legal parents of the child upon birth and listed on the child’s birth certificate. (Great!)
But it also included some uncommon provisions, by American standards:
- The child must have access to the personal information of the donor(s). (There is a bubbling movement and debate in the United States on the rights of donor-conceived children to know their genetic history, but the movement has been slow, and the legal changes have lacked any real grip so far.)
- The court must approve the agreement before conception. (Oklahoma’s recent surrogacy law mandates this, but nowhere else in the United States does.)
- The surrogate has the right — within six weeks after the birth — to send a petition to the court because she has changed her mind and intends to keep the child. (… record scratch. Wait, what? The ability for a birth mom to change her mind is a basic requirement with adoptions, but clearly there is a wide variance in thought between our countries as to how comparable surrogacy is to adoption.)
Part II. Criminalization. OK. That last bullet point might have been alarming. But now let’s talk about the July 2020 portion of the proposed law. It is truly frightening. Paid surrogacy is essentially a criminal offense, even if done abroad in a country where it’s completely legal. The draft law states that:
- It is unlawful to persuade a woman to become a surrogate by promising her a “significant advantage.” Significant advantage is explained as anything that provides a benefit to her beyond mere reimbursement of certain surrogacy-created expenses.
- It is unlawful for a surrogate to ask for or receive a significant advantage.
- This criminal code has extraterritorial effect and will be effective whether the act is committed in the Netherlands or abroad, if a significant advantage is offered or received by a Dutch citizen or a Dutch resident permit holder, and regardless of when this crime was committed.
Commodities Or Extra Wanted? The drafters say that the provisions are necessary to protect women from exploitation and to ensure that children are not commodified. I’m on board with those two interests, of course, but is there really a connection between being a surrogate or being delivered by a surrogate, and either being exploited or commodified?
Fortunately, I was able to read (via the Google translate) a well-researched and well-reasoned response that was submitted to the Netherlands’ government by Dutch attorney Wilma Eusman. Eusman explained that there’s insufficient scientific evidence to establish a connection between being delivered by a surrogate and suffering any mental health issues or other damage associated with being “commodified.”
She suggested an alternative and more accurate theory, “growing up knowing that your parents have paid for the cost and inconvenience of the woman who was willing to help them achieve their desire to have a child can give you an extra sense of self-worth, knowing how wanted you are.” Eusman then pointed to large-scale studies following children born via surrogacy, which reflect that they did not have negative feelings about being delivered by a surrogate. (Check out this podcast interview with the brilliant young Yale-student Malina Simard-Halm, as she shares her experience as a surrogate-born person.)
Does This “Protect” Women? The draft law also insults women who have been surrogates and were also comfortable receiving compensation for the intense nine-month commitment. The Dutch drafters explain that if a woman is compensated, she may be compelled to take risks that she would not otherwise take due to financial considerations, she may withhold medically relevant information, and her participation may not be completely voluntary.
Of course, exploitation is possible. But knowing hundreds of women who have affirmatively volunteered to be a surrogate and received compensation, their impetus has been far from being powerless pawns of exploitation. Inevitably, in my experience in the United States, the surrogate is a strong and driven woman. While there can be multiple motivations, the common thread is a belief in the depth and beauty of parenthood as a human experience, and wanting to help others fulfill that dream. (Check out these podcast interviews with surrogates about their experiences — here, here, or here.) Being compensated helps the surrogates’ families, and here in the Unted States, no one is credibly accusing these women of lying about their medical background or participating involuntarily.
Eusman’s response identifies many of the flaws in such a law, where the government tells women what they can and cannot choose to do with their bodies. Eusman points out that the government is fine with everyone else in the arrangement being compensated — the attorneys, the psychologists, etc. — but not the woman who is actually carrying the child. She also points out that Dutch citizens are allowed to volunteer for experimental medical trials — and get paid. Clearly, some people are more equal than others when they decide to risk their health and be compensated for it. In fact, as Eusman pointed out, banning a surrogate from compensation results in the exact opposite of the proposed “protection” of her, putting her at a legally required disadvantage.
Encouraging Opaque, Underground Surrogacy. Eusman identified another major problem with the proposed legislation. Because criminalization is based on the ability to show and prove that the surrogate received a “significant advantage,” it punishes those who go to a country where surrogacy is transparent, well done, and safely practiced — like Canada and the United States. Instead, the law pushes hopeful parents to countries where the process is deliberately murky, and therefore not easy to prove that the surrogate received compensation. Eusman pointed out that these are the countries where there is, in fact, a higher risk of commodification and exploitation.
Eusman proposed an alternative: the law should be revised to set standards to define jurisdictions where surrogacy is safely practiced, and permit Dutch citizens to be able to complete their families in those countries, if not the Netherlands itself.
Here’s rooting for those in power in the Netherlands to recognize the truth in Eusman’s words, and to change course for everyone’s sake.
Ellen 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.