16 Summary

to give each child, at the earliest possible time, two parents who are known or maybe known later;

to give everyone, irrespective of the form of cohabitation, gender or sexual orientation, an opportunity to establish a family.

Legal parenthood is redefined. The persons responsible for the conception are the legal parents. This parenthood first acquires significance after nidation in the uterus, which marks the start of the pregnancy leading to the birth of the child. In his perspective, Article 1:2 of the Dutch Civil Code applies to this period. Although parenthood effectively arises at birth, it is in fact the continuation of the earlier parenthood. It is important to note that he, following the position adopted by Dutch, English and German legal writers, has assumed that gametes are goods that can change ownership; see Dutch ‘Embryo Act’ (Embryowet) and Dutch ‘Donor Information (Artificial Insemination) Act’ (Wet donorgegevens kunstmatige bevruchting). The owner of these gametes performs the action that ultimately leads to conception. This owner can, but need not be genetically related to these gametes. This owner can, but need not perform any biological activity (see the new definitions). Wherever he uses the word ‘owner’, this can refer to both the male and the female person. After all, everyone can denote his or her gametes to everyone else. Men can thus become the owner of ova and women the owner of spermatozoa. He removes the distinction that exists in current law, and which is apparently not equally clear to everyone, between a genetic father, a biological father and a begetter. Also the fiction that a child can be conceived, but that there is no begetter, is no longer possible in his new vision. Everyone who is directly or indirectly responsible for fertilisation is the begetter, who by operation of law becomes the legal parent. This parenthood is thus based solely on the actions carried out by both persons with their gametes or for the responsibility that they have assumed for the fact that the other has performed such an action. In this description of parenthood, there is no longer any room for women who carry the conceived for nine months and ultimately give birth to the child. This leads to the following point.

A description is given of surrogacy. After fertilisation, the zygote autonomously develops into an embryo. For this, the embryo requires a good nutrient medium. The best medium is the hormonally prepared uterus of a woman. Nota bene: of a woman, not of the woman. Study into human reproduction shows not only that fertilisation can take place outside the female body (IVF), but also that the resulting embryos can be transferred to the hormonally prepared uterus of every woman. This knowledge gave rise to surrogacy: the pregnant woman carries a child during nine months for someone else. After birth, she hands over the child to the legal parents. A woman who has carried the child during pregnancy and undergone childbirth has not performed an ‘act of begetting’ and is thus not responsible for the child. She is not the legal mother. It is properly superfluous to note that both the unknown and the known sperm donor, without having expressed a clear wish of paternity, will also never become the legal father. Surrogacy linked to the possibility of gamete donation makes it theoretically possible for everyone to found a family, were it not that current policy in the Netherlands seeks to discourage surrogacy. This thesis strives to counter the prejudices with wellfounded arguments, while at the same time pushing for legalisation, facilitation and regulation. Although a comparative law study shows that many countries show greater acceptance of surrogacy than the Netherlands – some have, in fact, more or less legalised commercial surrogacy – it is nevertheless clear that these countries too face a generally latent, sometimes manifest, problem. Actually, there are two different problems. Surrogacy tourism to the ‘freer’ countries, as described in this thesis, leads to the birth of children who, on returning to the Netherlands, become the subject of significant legal problems. This can even lead to a refusal to allow the child to enter the country. These problems disappear once surrogacy is legalised and thus accepted in the Netherlands. The other, much greater, problem lies in the agreement between the surrogate mother and the social parents. Point 3 deals with this matter.

Various matters are arranged in the surrogacy agreement between the surrogate mother and the social parents. Two of the main considerations for the surrogate mother and the social parents cannot, on pain of nullity of the agreement, be agreed, however: the handing over of the child by the surrogate mother and the acceptance of the child by the social parents. After all, the child cannot be the subject of an agreement. Even if these provisions are included in an agreement (see the VUmc agreement), they cannot be enforced in law. That same problem also plays a role in countries where surrogacy is legalised. The fact that US courts, in the sporadic cases that arise, nearly always award the child to the social parents shows that no absolute enforceability exists and it is up to the court to decide upon the intention of the surrogate mother. If it is clear that the surrogate mother did not become pregnant with the intention of maternity, the court will award the child to the social parents. While the initial intention of the surrogate mother is important, this thesis gives far more weight to the intention of the social parents who can prove their intention by the actions that have led to fertilisation. Only now does it become apparent what the consequences are of the changes proposed in points 1 and 2. From the moment of conception there are, in principle, two persons who are responsible for the fertilisation, i.e. the legal parents. Indeed, pursuant to Article 1:2 of the Dutch Civil Code, a legal relationship exists between these persons and the future child from the moment of nidation. The status of these parents remains unchanged during the pregnancy. Once the child is born, their parenthood changes from virtual to actual. In short, the legal parents had that status from the time of conception, which they retain at the time of birth. For this, it is necessary to take leave of the fiction of parentage law that maternity is assumed if the woman has carried the child for nine months and then given birth to it. After all, the surrogate mother did not have the intention of maternity. Carrying the child and giving birth to the child do not entitle her to change this intention. The ultimate consequence of the fact that the social parents continue to be legal parents at the time of birth removes the grounds of nullity of the surrogacy agreement. Contrary to the ‘old’ agreement, the subject of this agreement is not the child, but instead the carrying of the child and giving birth to the child. The surrogate mother hands over the child to the legal parents after birth. The surrogate mother cannot keep the child; the social parents cannot refuse the child.