For two mothers, legal parenthood can arise automatically at birth: the birth mother’s wife or registered partner is a legal parent if the child was conceived with an unknown donor and the donor-data authority confirms this (Article 1:198(1)(b) of the Dutch Civil Code, BW). In all other cases the co-mother becomes a parent by acknowledgement (erkenning) or adoption. For two fathers there is no automatic route: the birth mother is always the legal mother, so the second father can only become a parent through a court adoption.
Below we explain each route, the conditions and deadlines, and what to arrange if your family moves abroad. See also our Guida olandese al diritto di famiglia.
Sommario
Why does legal parenthood matter?
Legal parenthood creates the family-law relationship between parent and child. From it follow the duty of maintenance, the child’s right to inherit on intestacy, the transmission of Dutch nationality where the conditions are met, the surname and the possibility of parental authority (gezag).
Parenthood and parental authority are separate. A parent without authority cannot, for example, give consent for medical treatment or school enrolment on his or her own. Check both, and do so before the birth where possible.
When is the co-mother automatically a parent?
Under Article 1:198(1)(b) BW the woman married to or in a registered partnership with the birth mother at the time of birth is a legal mother, if three conditions are met.
- The child was conceived by artificial donor insemination within the meaning of the Donor Data (Artificial Insemination) Act (Wet donorgegevens kunstmatige bevruchting).
- The donor’s identity is unknown to the birth mother.
- A statement from the Donor Data Board (College donorgegevens kunstmatige bevruchting) confirming this is submitted when the birth is registered with the civil registrar.
“Unknown” is not the same as anonymous: the child can later request information about the donor. If the conditions are met, both mothers are legal parents from birth and exercise joint parental authority.
How does acknowledgement work?
If the mothers are not married or in a registered partnership, or used a known donor, the co-mother can acknowledge the child at the municipality, before or after the birth. See our page on riconoscimento di un bambino.
For a child under sixteen, the acknowledgement requires the prior written consent of the birth mother; a child aged twelve or older must also consent (Article 1:204 BW). Acknowledgement is not possible if the child already has two parents, for example because a known donor has acknowledged the child first.
Since 1 January 2023 the mother and the person who acknowledges the child exercise parental authority jointly by law, unless they declare at the acknowledgement that the mother alone will have authority (Article 1:251b BW).
When is adoption needed for two mothers?
Adoption is needed if the co-mother cannot become a parent automatically or by acknowledgement, for example because the child already has a legal father. The court grants it if the adoption is in the child’s obvious interest and the conditions of Articles 1:227 and 1:228 BW are met.
For a partner adoption, the adoptive parent must have cared for the child together with the parent for at least one year (Article 1:228(1)(f) BW). The requirement of three years of living together does not apply if the child was born within the relationship. If the child was born into the relationship through donor insemination with an unknown donor and the Donor Data Board statement is submitted, the court grants the adoption unless it is clearly not in the child’s interest (Article 1:227(4) BW).
How do two fathers become legal parents?
The woman who gives birth is always the legal mother (Article 1:198(1)(a) BW), also in a surrogacy arrangement. Two fathers therefore need a sequence of steps.
- The biological (intended) father acknowledges the child, with the prior written consent of the surrogate mother (Article 1:204 BW).
- Parental authority is arranged so that the father alone, or the father together with his partner, has authority. Partner adoption requires that the parent has authority alone or jointly with the adoptive partner (Article 1:228(1)(g) BW).
- The partner applies to the district court for adoption. He must have cared for the child together with the father for at least one year (Article 1:228(1)(f) BW), and the adoption must be in the child’s obvious interest.
If the surrogate mother is married, her spouse may be the child’s legal parent by law, which complicates the first step. In that case take advice before the birth. During the procedure only one father is a legal parent, so a will and guardianship arrangement are advisable in the meantime.
La maternità surrogata è consentita nei Paesi Bassi?
Surrogacy itself is not a criminal offence, but a surrogacy agreement cannot force the surrogate mother to hand over the child. Professional mediation is prohibited: bringing about or promoting surrogacy arrangements in the course of a business, or publicly offering such services, is punishable under Article 151b of the Dutch Criminal Code (Sr).
A bill to regulate surrogacy and parenthood after surrogacy has been prepared but is not in force. Until then, the route described above applies. Our article on maternità surrogata nei Paesi Bassi discusses the practice in more detail, and our guide on leggi sull'adozione dei bambini nei Paesi Bassi covers adoption generally.
Is foreign parenthood recognised in the Netherlands?
Not automatically. A foreign birth certificate or parenthood order is assessed against Dutch private international law, including public policy and the child’s interests. Parenthood based on foreign commercial surrogacy is scrutinised closely, and a Dutch adoption is often needed for the second father.
A foreign same-sex marriage is in principle recognised, but it does not by itself make the spouse a parent of a child born in the Netherlands. The Dutch routes above still apply. See our article on riconoscimento ed esecuzione delle sentenze straniere.
Is Dutch parenthood recognised abroad?
That depends on the other country. Some states refuse to recognise a child having two mothers or two fathers on public policy grounds, which can leave one parent without legal status there.
Before moving, obtain certified copies of the Dutch birth certificate and any adoption decision, with an apostille or legalisation for the destination country. Where recognition is uncertain, a will, a medical power of attorney and a guardianship designation reduce the risks.
What should you check as a female couple?
- Whether you are married or registered partners at the time of birth.
- Whether the donor is unknown and the clinic can provide the Donor Data Board statement for the birth registration.
- With a known donor: a written donor agreement and an acknowledgement by the co-mother before the birth.
- Whether you want joint authority after acknowledgement, or a declaration that the mother alone has authority.
- Whether the child might already have a legal father, so that adoption is needed.
What should you check as a male couple?
- Whether the surrogate mother is married, and what that means for the father’s acknowledgement.
- Written consent of the surrogate for the acknowledgement.
- How parental authority is arranged before the partner adoption.
- The one-year care period before the adoption request can be filed.
- For surrogacy abroad: whether the foreign documents can be recognised and what adoption steps follow here.
What can we do for you with parenthood for same-sex couples?
avvocati di famiglia advise two-mother and two-father families before and after the birth.
- We determine which route to legal parenthood applies to your situation.
- We draft donor and surrogacy agreements and prepare the acknowledgement.
- We file requests on parental authority and the adoption petition with the district court.
- We assess recognition of foreign birth certificates and parenthood orders.
- We prepare wills, guardianship designations and documents for a move abroad.
Sintesi
- A married or registered co-mother is a parent at birth if an unknown donor was used and the Donor Data Board statement is submitted (Article 1:198 BW).
- Otherwise the co-mother acknowledges the child, which since 1 January 2023 also gives joint authority (Article 1:251b BW).
- Two fathers always need acknowledgement plus a court adoption after at least one year of care.
- Professional surrogacy mediation is a criminal offence; surrogacy agreements are not enforceable.
- Dutch parenthood is not automatically recognised abroad, and vice versa.
Domande frequenti
Is the co-mother automatically a parent if we are married?
Only if the child was conceived with a donor unknown to the birth mother and the Donor Data Board statement is submitted at the birth registration (Article 1:198(1)(b) BW). Otherwise she becomes a parent by acknowledgement or adoption.
What if we used a known donor?
Then there is no automatic parenthood. The co-mother can acknowledge the child with the written consent of the birth mother, also before the birth. Adoption is only needed if the donor has already acknowledged the child or has been declared the father by a court.
Does acknowledgement also give parental authority?
Yes. Since 1 January 2023 the mother and the person who acknowledges the child have joint authority by law, unless they declare at the acknowledgement that the mother alone will exercise authority (Article 1:251b BW).
Can two fathers both be on the birth certificate?
Not at birth. The birth mother is always the legal mother. The biological father can acknowledge the child; his partner becomes a parent through a court adoption after at least one year of joint care.
Does a foreign same-sex marriage make my spouse a parent in the Netherlands?
No. The marriage may be recognised, but parenthood of a child born here follows the Dutch rules: automatic co-motherhood, acknowledgement or adoption.
