Surrogacy in Brazil: What requirements must be met?

By Babygest Staff
Last Update: 10/04/2019

Although there is no law regulating surrogacy in Brazil, the Federal Council of Medicine has established a series of indispensable conditions for access to this reproductive treatment.

These requirements are contemplated in the Resolution 2.121/2015, one of the most important being that it determines that the surrogacy process must be carried out altruistically.

Surrogacy law in Brazil

Commercial surrogacy is not allowed in Brazil, as the Constitution prohibits the commercialization of organs and tissues. For this reason, the surrogate mother cannot receive any type of financial compensation for carrying the pregnancy to term.

However, since there is no specific law expressly prohibiting such a reproductive technique, surrogacy may be performed altruistically.

Therefore, the Federal Council of Medicine Resolution 2.121/2015 has established a series of essential requirements that must be met:

  • The Surrogate mother must do the process altruistically.
  • The Surrogate mother must be a family memberof the first, second, third, or fourth grade of one of the intended parents. This means that the Surrogate mother must be the mother, sister, daughter, aunt or cousin.
  • Neither the intended mother nor the surrogate mother can be older than 50 years.
  • The intended mother must have a medical problem that prevents or contraindicates gestation.
  • Homosexual couples can also have offspring by this method.

Only if a Regional Medical Board grants permission, an exception may apply. An example of this could be that a woman outside the family of the intended mother or father is the surrogate mother.

What does it mean that surrogacy is altruistic?

As we have already said, surrogacy in Brazil has an altruistic character, so commercial surrogacy is prohibited. This means that the surrogate mother cannot receive any compensation for the pregnancy.

However, the intended parents must cover the costs of assisted reproduction treatment, pregnancy and childbirth. If these expenses are not covered, the surrogate mother can obtain a court order for maintenance during pregnancy from the intentional parents.

The regulation of assisted reproduction techniques by the Federal Council of Medicine requires the consent of all parties involved in the process. If the surrogate mother or the intended mother are married, the consent of the husband will also be required.

Acknowledgement of paternity

There is no law that specifically regulates paternal recognition in treatments of surrogacy. However, the Civil Code provides for the presumption of paternity for those born in Brazil in article 1597. In the case of the father, 3 scenarios are contemplated:

  • If the woman was married at the time of conception, the father is the husband.
  • The father is the sperm donor if he consented to the assisted reproductive treatment and was married at the time of birth.
  • The father is the husband of the woman who has given birth after assisted reproductive treatment with donor sperm with prior consent.

As can be seen in the Civil Code, the case of birth by surrogacy is not contemplated. So when a baby is born as a result of this process, the intended mother must have a court judgment certifying that the baby is recognized as her child in order to register it. Otherwise you would be guilty of a crime because you cannot register as your own a baby whom another woman has given birth to.

According to the Brazilian Constitution, any discrimination between legitimate and illegitimate children is prohibited. In fact, it specifies specifically that no distinction can be made between those born in or out of wedlock, naturally or by adoption.

These distinctions are also prohibited for those born thanks to assisted reproduction techniques and this includes those born through surrogacy.

FAQs from users

Is surrogacy also possible for singles or just for couples only?

By Sara Salgado (embryologist).

Resolution 2.121/2015 of the Federal Council of Medicine establishes the necessary conditions to be able to carry out a surrogacy process in Brazil. It indicates that this reproductive method can be accessed for any medical condition that prevents or contraindicates pregnancy to the intended mother and in cases of homosexual couples.

Therefore, in the case of women, it is not clear whether they should have a partner or not. In principle, single women, lesbian couples and heterosexual couples could have access to this technique due to medical incapacity to gestate. However, single men are not mentioned.

Why isn't it common to travel to Brazil for surrogacy?

By Sara Salgado (embryologist).

In this country, as there is no specific law regulating surrogacy, there are no legal or legal guarantees for the parents of intention. It is advisable to go to a country that has favorable regulations to avoid possible problems during the process, especially those related to filiation.

Suggested for you

As can be seen, Brazil is neither a recommended nor a demanded destination in terms of surrogacy for foreigners. If you are looking for a destination that suits your specific case, we advise you to visit the following section: Where is surrogacy legal?

Finally, it should be noted that Brazil is a suitable country for adopting a minor. For adopting a child, U.S citizens will have to fullfil the requirements explained in the following article: International adoption.

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