Portugal is one of the few countries who is in favor of surrogacy.
Law 25/2016 was published on 22 August 2016 and, after a year of regulation, the Regulatory Decree allowing its application finally came into force on August 1, 2017. However, in 2018, the law was taken to the Supreme Court and is completely paralyzed, so we will have to wait to know how things will turn out.
In this article we are going to detail the conditions established in this new Portuguese legislation on surrogacy and how the situation for foreigners is.
Below you have an index with the 8 points we are going to deal with in this article.
A long and controversial journey
The legislation regulating surrogacy processes in Portugal has undergone several modifications in recent years. Today, there is still a great deal of controversy surrounding this debate between the conservative portuguese parties and the more progressive ones.
In the next section, we are going to comment on how all these legal aspects have evolved until the approval of surrogacy in Portugal.
First draft and law text
A first text authorising surrogacy in Portugal was approved by Parliament on 13 May 2017, causing a political and social upheaval.
The following day, the Portuguese Catholic Church condemned the Parliament's decision. On June 7, President Marcelo Rebelo de Sousa vetoed the law, which he declared contrary to the conditions formulated by the National Ethics Council.
On July 20, 2016, a narrow parliamentary majority approved a new text of law to regulate access to surrogacy, published on August 22, 2016 under the name of Law 25/2016. The new text pays more attention to the rights of surrogates and children.
This new law modified Law 32/2006 which regulates assisted reproduction (in Portuguese, procriação medicamente assistida) and increases the possibilities of being parents for people who, until now, could not be parents in a natural way.
Approval and subsequent cancellations
On July 31, 2017, Portugal published several months late the regulatory decree that regulates in a concrete way the application of surrogacy within the framework established by law. This text entered into force on 1 August, but was subject to revisions during the following year.
In fact, on April 24, 2018, the Constitutional Court of Portugal decided to override several points of the law approved by Parliament, considering that they violate constitutional principles and rights. At present, the law remains in the hands of the Supreme and it is unknown how it will ultimately be determined. In short, the law is completely paralyzed.
Surrogacy processes approved prior to this cancellation will not be affected though.
The prices for a surrogacy in Portugal and the practical details are not yet known because the law is very young.
Portuguese surrogacy law
Law 25/2016 concerning surrogacy defines surrogacy as:
Any situation in which a woman disposes to carry the pregnancy to term in favor of third parties and to deliver the child to them after the birth, renouncing the rights and duties proper to maternity.
The use of a surrogate mother should be an exceptional reproductive solution. This method of assisted reproduction may only be used in the event of absence or dysfunction of the uterus that strictly prevents pregnancy. You can't practice a surrogacy for pleasure.
As fertility treatment and since the reform of the law on assisted reproduction techniques, surrogacy is meant for heterosexual couples and female homosexual couples, married or living as such.
Single men and male homosexual couples have no right to this treatment. As for unmarried women, they should be able to apply under article 6 of Law 32/2006. However, the surrogacy law and its regulatory decree systematically mention "the couple" and do not leave the possibility for a single woman to resort to surrogacy.
The execution of the treatment will depend on the authorization of the CNPMA (Conselho Nacional de Procriação Medicamente Assistida) and of the previous opinion of the Portuguese Medical Association (Ordem dos Médicos).
Commercial surrogacy is prohibited in Portugal. Only the altruistic form is allowed. This means that the surrogate mother cannot receive any compensation for the pregnancy. Nor can she accept a donation from the IPs.
The Intended parents or beneficiaries (as they are called in the Law 25/2016) can instead take charge of the expenses derived from the medical control of the gestation.
At present, it is not known whether any type of limit will be established as to the maximum amount of these expenses, although they must be recorded in the form of invoices, receipts or any other type of proof of expenditure.
On the other hand, in order to avoid possible blackmail or pressure, no type of employment relationship or economic subordination between the surrogate and the future parents is allowed to exist.
As explained above, surrogacy is reserved for women who suffer from an absence of a uterus, an injury or disease of this organ that prevents gestation in a strict and definitive way.
Thus, in the case of a female partner, both women will have to justify their inability to gestate.
The process may be carried out in an authorized medical center in Portugal, whether public or private.
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Genetic and affective relationship
Portugal only allows gestational surrogacy, also called total or complete surrogacy. For this reason, the surrogate will never be the same person as the egg donor that allow the creation of the embryo that she is going to gestate.
In this sense, at least one of the future parents must provide the genetic load, i.e. the ova or sperm that will be used in the in vitro fertilization technique for the creation of the embryo.
People born through surrogacy will be able to know the identity of the surrogate mother, as well as the possible donors of ova or semen.
As for gametes donors, their anonymity has been censured by the Constitutional Court. The same applies to the relationship between the future baby and the surrogate, which was limited by possible psychological risks.
It is currently considered that this restriction on getting to know donors and the surrogate violates the rights of personal identity and the development of the personality of persons born through surrogacy.
The baby: filiation and confidentiality
Section 8(7) of the Surrogacy Act specifies that a baby shall be directly recognized as the child of its intended parents:
A child born through surrogacy is recognized as the child of the respective beneficiaries.
The surrogate and the use of surrogacy will not be mentioned on the birth certificate in order to avoid discrimination against children born through assisted reproduction techniques.
The Data Protection Act applies to participants in surrogacy treatment. The birth shall be considered as if the mother of intention had given birth.
Intented parents are immediately recognized as the baby's legal parents and, as such, the family regime applies to them.
After the last revision of the law in April 2018, the Constitutional Court of Portugal has abolished the fact that there can be no consideration period of the surrogate mother.
Article 39 of Law 25/2016 of 22 August 2016 details the sanctions provided for in case of infringement.
If the treatment takes place outside the centers authorized by the Ministry of Health, the penalty may be up to 3 years' imprisonment.
Commercial surrogacy is prohibited. If the intended parents offer remuneration or compensation to the surrogate beyond the reimbursement of expenses incurred for embryo transfer, pregnancy and childbirth, they risk a penalty of up to 2 years' imprisonment and 240 fine-days.
A penalty of up to 240 fine days may be imposed on the surrogate if she accepts money for her services.
A day-fine refers to the payment of a certain amount of money (set by a judge) on certain days.
If the contract does not comply with the provisions of the law but the altruistic nature of the contract is maintained, the penalties may be up to 1 year in prison and 120 day-fines for intended parents and up to 120 day-fines (without a prison sentence) for the surrogate.
To act as an intermediary or to directly promote the execution of surrogacy contracts contrary to Portuguese law can lead to 2 years in prison.
Obtaining economic benefits from the conclusion of surrogacy contracts or their promotion is punishable by up to 5 years in prison. This clause appears to be contrary to the creation of agencies in Portugal.
Regulatory Decree 6/2017
The Regulatory Decree of 31 July 2017 specifies the essential conditions for the application of the 2016 law. It is available (in Portuguese) on the website of the electronic newspaper of the Portuguese Republic: Regulatory Decree No. 6/2017.
Preliminary petition to the CNPMA
The beneficiary couple and the surrogate must jointly fill in the form requesting prior authorization to enter into a surrogacy contract. This form can be obtained on the CNPMA (National Council for Assisted Reproduction) website and the following documents must be attached:
- Copy of the identity documents of the two members of the couple and of the surrogate
- Joint acceptance of the conditions laid down in the standard contract
- Medical certificate established by the center that will perform the fertility treatment
- Favorable opinion of the psychiatrist or psychologist
- Agreement of the director of the fertility center where the treatment is to be carried out
The CNPMA has 60 days to deliberate after sending the form. In case of admission, send the documentation to the Order of Physicians (Ordem dos Médicos) which in turn has 60 days to give its opinion. This opinion is not binding; if it is negative or if it is not issued within the time limit set, the procedure may continue. The CNPMA then decides whether or not to authorize the execution of the contract, within a new maximum period of 60 days.
In total, the process can take up to 6 months.
Before making a final decision, the CNPMA may request a meeting with the intended parents and the surrogate. You can also ask for a complete and independent medical evaluation of the couple and the surrogate woman, both in the area of maternal health and in the area of mental health.
The contract must be written in Portuguese and signed by all parties involved.
A standard contract with the essential elements will soon be available on the CNPMA website.
All information about the procedure must be in writing to ensure respect for the human dignity of all persons involved. The contract will explain in detail:
- The right of the surrogate mother to decide jointly with the future parents the choice of obstetrician, the type of birth and the place of birth, as well as her obligation to respect the specialist's indications for the adequate evolution of the pregnancy and the well-being of the child. Her right to refuse diagnostic tests or to have to travel during the third trimester of pregnancy should also be clarified.
- The surrogate's right to psychological support before and after childbirth.
- Information on the assisted reproduction techniques used and their potential health risks, as well as information on the effects of the surrogate's lifestyle on the development of the fetus.
- The dispositions in case of complications of pregnancy (whether it is the surrogate or the fetus), how to proceed in case of malformation or fetal damage, voluntary interruption of pregnancy or in case of repeated failures of pregnancy.
- The legal act is free of charge and the parents do not pay any remuneration, except for the reimbursement of expenses incurred during pregnancy.
- Health insurance associated with the treatment of surrogacy.
- The way to resolve conflicts in case of discrepancies between the parties and the terms of cancellation of the contract.
Although all of these clauses are detailed in the current surrogacy contract, the Constitutional Court has ruled that it is necessary to include more limits on what both parties to the contract determine, in order to avoid negotiations on potentially excessive pregnancy conditions.
Situation for foreigners
Neither the law nor its regulatory decree specifies whether access to surrogacy is reserved for Portuguese citizens or residents. In the absence of any mention, the president of the Portuguese Fertility Association, Cláudia Vieira, has specified that any person who respects the law could resort to surrogacy in Portugal.
The surrogate could also be a foreigner and reside in another country, provided that the treatment is carried out entirely in Portugal, from the confirmation of the intended mother's infertility diagnosis to childbirth, through psychological examination, IVF procedure and medical follow-up.
However, to this day, we do not recommend in any case to choose Portugal as a destination to have a child through surrogacy, mainly because it was approved very recently and because the law is completely paralyzed to be brought before the Supreme Court.
In addition, we also do not know how foreigners can proceed to obtain the filiation of the minor. As far as we know to date, filiation will not be obtained by court judgement, so it is most likely to proceed as in Ukraine, Georgia and Russia, i.e. with the recognition of paternity for the intended father and subsequent adoption by the intended mother. In any case, we still do not know exactly how to proceed.
It is very important to know in detail how to take this step to avoid later problems.
In short, the approval of this treatment is so recent that the clinics are still not offering it as another option among the different reproductive techniques and treatments available. As soon as we know more data and real cases, we’ll keep you informed.
FAQs from users
Do single women have access to surrogacy in Portugal?
Actually, the rules are somewhat ambiguous in that respect. It would be expected that they could use this method, since, together with Law 25/2016, the application of assisted reproduction techniques to single women and lesbian couples was also approved. However, single women are not mentioned in the surrogacy law and the couple (or spouses) is always mentioned, which seems to exclude them.
If the philosophy of these changes is to extend the rights of the different family models, what is the point of not allowing access to surrogacy but to other methods of medically assisted reproduction?
I would like my sister to be the surrogate of my child - is this possible in Portugal?
Portuguese law only prohibits a woman from being a surrogate when she has a working relationship or economic dependency with one or both future parents. Therefore, as long as your sister meets the requirements established to be a surrogate in Portugal (age, state of health, emotional preparation...), there won't be any obstacles.
Is surrogacy possible in all fertility clinics in Portugal?
No. The fertility center (public or private) must have the approval of the Ministry of Health in order to offer surrogacy treatment.
There are penalties of up to 3 years imprisonment for carrying out the treatment outside the centers authorized by the Ministry of Health.
How does surrogacy work in Portugal?
Before starting treatment, the couple and the surrogate have to go to the fertility center to establish the medical justification of the intended mother and the psychological situation of everyone. After these examinations, the prior request is sent to the CNPMA, which consults the opinion of the Medical Association before giving its consent.
Both the couple and the surrogate have the support of a multidisciplinary team of social workers, psychologists and jurists to ensure that the decision has been taken with full awareness of its risks and consequences. The contract is only drawn up after this step.
Suggested for you
In this article we talk in detail about the legal conditions of surrogacy in Portugal, one of the few European countries in favor of this technique. If you want to know other possible destinations where you can carry out surrogacy, I recommend you consult this link: Where is it possible to carry out surrogacy?
One of the most outstanding characteristics about surrogacy in Portugal is that only the altruistic modality is allowed. Do you want to know the implications and consequences of this type of surrogacy? You can get more information here: What is altruistic surrogacy?
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