Surrogacy in Belgium

Belgium is one of the few European countries where surrogacy is neither expressly permitted nor expressly prohibited by law. No criminal provision sanctions the use of a surrogate mother as such. However, surrogacy agreements are considered unlawful under Belgian civil law, meaning that parties cannot seek their enforcement in court.

The Law of 6 July 2007 on medically assisted reproduction partially regulates gamete donation and embryo preservation, but contains no provisions specific to surrogacy. In practice, only four university hospitals in Belgium (in Liège, Ghent, Antwerp and UZ Brussel) are accredited to conduct surrogacy programmes, under strict internal protocols.

In the absence of specific legislation, the general parentage rules of the Civil Code apply. This principle has significant consequences for intended parents.

Legal Maternity

Article 312 of the former Civil Code provides that the woman who gives birth is automatically the legal mother of the child. In a surrogacy context, this means the surrogate – not the intended mother, even if she is the biological mother – is recorded on the birth certificate.

For the intended mother, the only legal means of establishing a parentage link is through adoption proceedings.

Paternity and the Presumption of Paternity

If the surrogate is married, her husband is presumed to be the father of the child. This can create considerable difficulties for the intended father who wishes to establish his parentage. The intended father may establish his paternity through voluntary acknowledgement, but only after the presumed paternity of the surrogate’s husband has been successfully challenged.

A landmark ruling by the Constitutional Court on 30 March 2023 provided important clarification on parentage issues in the surrogacy context. The Court examined whether Article 318, § 4 of the former Civil Code was compatible with the principle of equality and the right to respect for private life.

This provision states that the presumption of paternity of the husband cannot be challenged when he consented to medically assisted reproduction. The Court ruled that this provision, when interpreted as preventing a challenge to the presumed paternity of the surrogate’s husband in a surrogacy arrangement, was unconstitutional. The husband’s consent to assisted reproduction can only relate to a parental project between the spouses themselves, not to the realisation of a third party’s parental project.

In practical terms, this ruling now facilitates the challenge of the presumed paternity of the surrogate’s husband, provided that neither the surrogate nor her husband have a parental project with regard to the child.

In April 2023, the Belgian Advisory Committee on Bioethics published Opinion No. 86 on the legal framework for surrogacy, updating its previous opinion from 2004. The Committee reaffirmed that surrogacy is ethically acceptable subject to compliance with fundamental principles, and recommended that the legislator create a legal framework to organise the practice in a safe manner.

The Committee notably recommended that surrogacy remain exclusively altruistic and that the surrogate receive adequate protection. However, the question of the surrogate’s right to change her mind after delivery divided the Committee’s members. To date, the legislator has not yet acted on these recommendations.

Many intended parents who are Belgian nationals or residents turn to other countries for surrogacy arrangements, including Ukraine, Greece and certain US states. Returning to

Belgium with the child raises specific legal questions regarding the recognition of parentage established abroad.

According to the Belgian Ministry of Foreign Affairs, in the absence of a legislative framework, documents related to surrogacy (birth certificates, foreign judgments) are not automatically recognised. Consulates generally do not issue passports or travel documents for children born through surrogacy abroad until a Belgian court decision has been obtained.

The case law of the European Court of Human Rights, since the Mennesson and Labassee judgments of 2014 and the Advisory Opinion of 2019, requires states to provide a mechanism for recognising the parentage link between a child born through surrogacy abroad and the biological intended parent, in the name of the child’s right to respect for private life under Article 8 ECHR.

The European legal landscape is undergoing significant changes. In April 2024, the European Parliament voted to revise the directive on trafficking in human beings, including for the first time the exploitation of surrogacy among the forms of trafficking that Member States are required to prosecute (Directive 2024/1712). This development targets exploitative surrogacy, not altruistic surrogacy practised within an ethical framework.

Furthermore, in October 2024, Italy extended the criminalisation of surrogacy to Italian nationals who use it abroad, describing the practice as a “universal crime.” The European Commission has also proposed a regulation on private international law rules on parenthood, which, if adopted, could require Member States to recognise parentage established in another Member State, including in surrogacy cases.

Using surrogacy in Belgium or abroad carries significant legal risks of which intended parents must be aware. Since surrogacy agreements have no binding force under Belgian law, the surrogate may decide to keep the child after birth. In such a case, Belgian courts will apply ordinary parentage rules, which places the surrogate in a legally favourable position.

The timeframes and costs of parentage and adoption proceedings can be considerable. For surrogacy carried out abroad, additional difficulties may arise regarding identity documents, recognition of foreign judgments and returning to Belgium with the child.

Given the complexity of the legal framework and the absence of specific legislation, the guidance of a specialised family lawyer is essential at every stage of the process, whether you are considering surrogacy in Belgium or abroad. A lawyer can advise you on the legal implications of surrogacy for your specific situation, assist you with parentage and adoption

proceedings, secure the process as much as possible in advance, and manage private international law aspects in cross-border surrogacy cases.

Based on Avenue Louise in Brussels, I offer consultations in both French and English. Please do not hesitate to contact me to assess your situation and determine the best legal strategy.