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Portugal: New Law Further Regulates Surrogate Pregnancy

(Aug. 14, 2017) On July 31, 2017, the Government of Portugal enacted Regulatory Decree No. 6 to further regulate surrogate pregnancy (gestação de substituição), which is governed by Law No. 32 of 2006.  (Decreto Regulamentar No. 6/2017, de 31 de Julho (Regulatory Decree No. 6), DIÁRIO DA REPÚBLICA ELETRÓNIO; Lei No. 32/2006, de 26 de Julho (Surrogacy Law), Procuradoria-Geral Distrital de Lisboa website.)

Surrogate Pregnancy Under the Surrogacy Law

The Surrogacy Law defines surrogate pregnancy as any situation in which a woman is prepared to bear a pregnancy on behalf of another person and to surrender the child after birth by renouncing maternal rights and duties. (Surrogacy Law, art. 8(1).) The Law also establishes that the business relationship of surrogate pregnancy is only possible in exceptional cases and on a gratuitous basis. The cases include the absence of a uterus, injury, or illness that absolutely and definitively prevents the pregnancy of the woman seeking a surrogate or other clinical situations that justify the surrogacy. (Id. art. 8(2).)

Surrogate pregnancy may only be authorized by means of a medically assisted procreation technique using the gametes of at least one of the respective beneficiaries, and in no case may the surrogate mother be the donor of any oocytes used in the procedure. (Id. art. 8(3).) The surrogate pregnancy must be previously authorized by the National Council for Medically Assisted Procreation (Conselho Nacional de Procriação Medicamente Assistida), which oversees the entire process. In addition, the surrogacy is always preceded by a hearing at the Physicians’ Board (Ordem dos Médicos) and may only be approved in the situations described in article 8(2) of Law No. 32. (Id. art. 8(4).)

Any type of payment or donation of any good or amount by the beneficiaries to the surrogate mother is prohibited, except for the amount corresponding to the expenses resulting from the health care provided, including transportation, provided that these expenses are duly described in an appropriate document. (Id. art. 8(5).) Business relationships of surrogate pregnancy are prohibited when there is a relationship of economic subordination, namely labor or service provision, between the parties involved. (Id. art. 8(6).) A child born through surrogate pregnancy is considered to be the son or daughter of the respective beneficiaries. (Id. art. 8(7).)

The business relationship of surrogate pregnancy is established by means of a written agreement, concluded between the parties and supervised by the National Council for Medically Assisted Procreation, in which the parties must compulsorily state, in accordance with the legislation in force, the provisions to be observed should malformations or fetal diseases or the possible voluntary termination of pregnancy occur. (Id. art. 8(10).) The agreement may not impose behavioral restrictions on the pregnant woman, nor impose norms that violate her rights, freedom, and dignity. (Id. art. 8(11).)

Features of Decree No. 6

Regulatory Decree No. 6 describes the process for submitting the authorization request that must be presented to the National Council for Medically Assisted Procreation and the necessary supporting documentation and also defines the steps involved in the analysis of the request and the period of time for the approval or rejection of the request. (Regulatory Decree No. 6, art. 2.) Article 3 of the Decree provides a detailed description of the elements that the written agreement for the surrogate pregnancy must contain, and article 4 determines that the agreement is freely revocable up until the beginning of the therapeutic processes of medically assisted procreation.

For the purposes of parental leave, the beneficiary couple is granted parental leave within the scope of application of the regime regulating parenthood (id. art. 6(1)), whereas the surrogate mother is entitled to benefits equivalent to those provided for a woman who has an interrupted pregnancy (id. art. 6(2)). The regime of absences and waivers granted under protection of parenthood legislation is applicable to the surrogate mother and to the beneficiary couple as parents of the child. (Id. art. 6(3).)