Two women and a known donor; what needs to be arranged?
If a man and a woman are married or in a registered partnership and the woman gives birth to a child, the man is automatically the legal parent. If two women are married to each other or in a registered partnership, the situation is somewhat different. In that case, the other woman is not automatically a legal parent. In this article we would like to explain how it works.
Known or unknown donor?
First of all it is important to know whether the two women have used a known or unknown donor. An unknown donor is one who has donated sperm to a fertility clinic. Once the child is 16, he/she can request the identity of the donor. All other donors are called known donors.
How do you become a legal co-mother?
Since April 1, 2014, there are several options for the co-mother to become the legal mother of her child:
1.
The first option applies only to mothers who are married or in a registered partnership and who have used an unknown donor. In this case, the mother who is not carrying the child can become the legal mother by presenting a “declaration of parenthood” to the registrar of births and deaths when the birth is declared. This declaration is issued by the Donor Data Foundation and can be requested online.
2.
If the mothers have used a known donor, the co-mother can acknowledge the child at the municipality. If the recognition took place after January 1, 2023, then the co-mother also automatically has custody of the child.
So while it is simple and inexpensive to arrange recognition, there are also a number of drawbacks. Recognition after birth has no retroactive effect and can later be undone. The latter can be settled fairly easily through the court on the grounds that the surrogate mother is not the child’s biological mother.
In addition, it is not yet entirely clear whether maternity is recognized abroad. Currently, this still varies by country.
Furthermore, a donor who has a close and personal relationship with the child can ask the court for substitute consent to recognition. Even if the co-mother has already recognized the child. The judge will weigh up the interests involved. If the donor receives substitute consent from the judge, then the recognition of the surrogate mother is nullified and the donor becomes the legal parent of the child.
3.
The co-mother can also adopt the child instead of acknowledging it.
Unlike arranging recognition, adoption requires an attorney to petition the court.
At the moment, we advice to follow an adoption procedure if you have links with Italy.
Do you have any questions?
In case you would like to become a mother with the help of a known donor, we strongly advise you to record – prior to the insemination – the mutually made agreements in a donor contract. In such a contract you can lay down everything about legal parenthood, the costs and the (or not) desired contact between the donor and the child. It is well worth the investment and prevents many future misunderstandings.
We can help you with this. If you would like to know more about legal parenthood or more specifically about drawing up a donor contract, please contact Janneke Mulder or Anouk Hansma.