Surrogacy Insights

Surrogacy, a complex, and emotionally charged topic, has been a subject of intense debate and legal scrutiny in Portugal over recent years.  In 2016, a significant milestone was reached when uncompensated surrogacy was permitted, accompanied by the allowance for payment of medical expenses. This marked a notable shift in Portugal’s approach to reproductive rights and family formation.

However, the legal journey surrounding surrogacy in Portugal has been far from straightforward.  In 2019, the Constitutional Court delivered a landmark ruling that deemed recent amendments to the 2016 surrogacy law unconstitutional. The Court seemed to want some inclusion of the surrogate’s “right to regret” (not relinquish the child).  In the event a surrogate changed her mind, the court would decide the case based on the child’s best interests.

Furthermore, the Court rejected provisions that allowed parents to invalidate surrogacy contracts, citing the fundamental duty of the State to protect the child.  (The court did not delve into the different causes of a breach of contract but the intended parent.)  Additionally, the Court struck down anonymity for egg donors and surrogates, recognizing the child’s fundamental right to identity.  The court paved the way for how the law should be amended.  However, there has been no amendment to this 2016 law to include the Court’s views and recommendations.

Portugal took another step forward in January 2022 when the law was passed to allow surrogacy for women with physical conditions preventing them from carrying a child to term.  Notably, this legislation excluded men from surrogacy arrangements.  This law also gives the surrogate mother the right to back out of the agreement during the first 20 days.

However, the broader regulatory framework for surrogacy in Portugal remains a work in progress, with ongoing discussions and debates shaping the future of surrogacy legislation in the country. For  now, we know the following applies to surrogacy in Portugal:

• Only altruistic surrogacy is permitted
• Participants must be Portuguese or a permanent resident of Portugal.
• The surrogate cannot be biologically related to the child she carries. 
• At least one intended parent must be biologically related to the child.
• The contract cannot have any clause that inhibits the surrogate’s behavior during the pregnancy. In addition, the contact cannot infringe on her rights, freedom, and dignity.
• In June 2016  under Law n.17/2006,  any woman, regardless of her civil status or sexual orientation has access to surrogacy.  However, men can only use ART if they are part of a heterosexual couple.
• Surrogacy contracts are subject to prior authorization from the National Council for Assisted Reproductive Technologies, which supervises the entire process.
• The surrogate cannot change her mind about relinquishing the baby after delivery.  (Article 8 (1) and (7))
• Surrogacy arrangements are subject to a written contract between the parties, to be supervised by the National Council for Assisted Reproductive Technologies, which may not impose behavioral restrictions on the surrogate mother, nor any terms that infringe on her rights, freedom, and dignity

Despite existing laws, the enforceability of surrogacy contracts by the courts remains uncertain. Both the legislature and courts have been hesitant to definitively affirm the validity and enforceability of such contracts.

Article 39 of the Portuguese Penal Code punishes anyone who enters into surrogacy contracts that entail any form of profit, or who falls outside the cases provided for in Article 8(2) to (6).

Portugal continues to grapple with questions of reproductive rights, parental responsibilities, and child welfare, and the journey toward a comprehensive and ethically sound surrogacy framework remains ongoing.