Surrogacy in Belgium: what are the implications for parentage?
Parenthood and its interpretation have undergone an enormous evolution in recent decades. Among other things, fertility problems within a couple can prevent them from taking the traditional route to becoming parents. For some time now, advances in technology have offered solutions, such as in vitro fertilization or artificial insemination. Another avenue for wishing parents to consider is surrogacy. The experts in family law at Bannister Lawyers explain what this net entails, how it is regulated in Belgium and what the legal consequences are.
What is surrogacy?
A surrogate mother is someone who chooses to become pregnant based on arrangements with a wishing couple who would like a child and cannot conceive themselves for certain reasons. The surrogate mother gives birth to the child, but not with the intention of keeping and caring for the child for herself. After birth, the surrogate mother will relinquish the child to the wishing parents.
Legal framework for surrogacy in Belgium?
Surrogacy is not regulated in Belgium, but it is tolerated. In concrete terms, this means that in Belgium there is no ban on it, but on the other hand, there is no protection for the wishing parents towards the surrogate mother, for example.
Due to the fact that surrogacy is tolerated in Belgium, there are some fertility centers in Belgium that guide wishful parents through the process. What is important is that a fertility center only non-commercial surrogacy may supervise. Beforehand, there will be a thorough screening of all involved to ensure that there are no economic motives at play.
Pedigree implications.
Since there is no legal framework for surrogacy, this technique also brings with it a great deal of legal uncertainty, namely in terms of parentage. A surrogate mother cannot legally be forced to relinquish the child and conversely, there is no mechanism for the intended parents to have the child taken away by force.
This means that the ordinary parentage rules of the Civil Code apply, with the result that the surrogate mother is automatically the legal mother and this cannot be contested under the law. If the surrogate mother is married, this also means that paternity or co-maternity is automatically established along side the surrogate mother's partner. If the surrogate mother is not married, one of the wishing parents can acknowledge the child, but this requires the consent of the surrogate mother.
In other words, the lack of a legal framework ensures that (one of) the wishing parents are not the legal parents at the time of birth.
To accommodate this situation, adoption is often used in practice. This way, both desiring parents can also become the legal parent. However, the procedure of adoption takes a long time, so there is a long way to go before the legal parental bond is established.
The future of surrogacy.
It is clear that the technique of surrogacy creates complicated situations for the wishing parents, among others. A legal regulation could meet the difficulties faced by those involved in this regard.
At least the Belgian Constitutional Court has already taken a step in the right direction in a judgment dated March 30, 2023. The Court decided that the intended parent (biological father) could contest the paternity of the surrogate mother's husband and have his paternity established at the same time. Previously, this was not evident and it was assumed that the paternity of the surrogate mother's husband could not be contested either. Surely this gives somewhat more protection for the intended parents.
The future will show to what extent any legal regulation of surrogacy would be possible.
If you would like more information about this, please feel free to contact our family law specialists at info@bannister.beor at 03/369.28.00. Our team is always ready to help you further.
