Under Belgian law (Civil Code, Articles 312-342, Moniteur Belge), parentage is determined by:
(a) The birth mother, who is automatically recognized as a legal parent at birth (Article 312).
(b) The biological father, who is presumed to be the legal parent if married to the mother (Article 315) or if he acknowledges paternity (Article 319). For unmarried couples, the father must formally acknowledge the child or establish paternity through court proceedings (Article 332).
In cases of informal sperm donation (e.g., at-home artificial insemination or natural insemination), the donor may be recognized as the legal father if he acknowledges paternity or if a court establishes paternity based on biological evidence or intent to parent (Article 335), particularly if he is involved in the child’s life post-birth.
Assisted Reproduction:
In Belgium, gamete donation is regulated under the Law of 6 July 2007 on Medically Assisted Reproduction (Loi relative à la procréation médicalement assistée, Moniteur Belge). “Donor-assisted human reproduction” (DAHR) involves donated gametes used in licensed fertility clinics (Article 2). Note: Informal sperm donation outside clinical settings is not regulated and is generally considered illegal under this framework.
DAHR is permitted for heterosexual couples, same-sex couples, and single women (Article 4). Donors must be 18-45 years old, healthy, and can choose anonymity or identifiability. Since 2015, children can access donor information at age 18 if the donor opted for identifiability (Article 5).
Sperm Donor Agreements:
In regulated DAHR, the donor is not a legal parent if the procedure complies with the 2007 Law. The intending parents are recognized as legal parents at birth (Article 6). Note: Informal sperm donation lacks this protection—donors risk being recognized as legal parents under general paternity laws (Article 315 or 335), especially if they acknowledge the child or are involved post-birth.
For natural insemination (NI) or informal AI, Belgian law does not provide specific exclusions for donors. A donor could be deemed the legal father if paternity is established, particularly if the mother is unmarried and the donor acknowledges the child. Courts may also intervene to establish paternity if there’s evidence of intent to parent.
Surrogacy:
Surrogacy is not explicitly regulated in Belgium but is generally considered unenforceable under Belgian law (Civil Code, Article 1128, which prohibits agreements on a person’s body). Parentage defaults to the birth mother, and surrogacy agreements are not legally binding.
Altruistic surrogacy is practiced in a legal grey area, with some hospitals facilitating arrangements. Intending parents must adopt the child post-birth to establish parentage, often requiring court approval. Commercial surrogacy is effectively prohibited.
International surrogacy arrangements are recognized on a case-by-case basis, often requiring legal proceedings to establish parentage in the child’s best interests (e.g., Court of Cassation, 2019).
Parentage Agreements:
In regulated DAHR, parentage is formalized through consents at fertility clinics, with intending parents recognized at birth registration (Article 6). Informal agreements (e.g., co-parenting or donor contracts outside DAHR) lack legal standing in Belgium. Courts may need to intervene under Article 335 to establish or contest paternity if disputes arise.
Informal arrangements carry significant legal risks, as Belgian law prioritizes biological parentage over intent in non-regulated settings. A donor could claim paternity, or the mother could seek child support, depending on judicial interpretation.