SURROGACY IN PORTUGAL

In 2016, Gestational surrogacy was legalized in Portugal. Discussions on the adoption of this law lasted more than 3 years. The first version of the law was adopted May 13, 2016, but the president vetoed it. He demanded that the law contained rights and obligations of all participants in the process of surrogacy. As a result, the text of the law has been updated, and now surrogacy is legalized and regulated by law in Portugal.

The basic rules of the law on surrogacy in Portugal Use the surrogacy services can only those couples, where the woman can not carry and give birth to a child for medical reasons. This should be documentally confirmed. Surrogate motherhood should be altruistic, the woman who agrees to carry and give birth to a child, shouldn’t pay for services. The written agreement must be necessarily issued between the surrogate mother and the genetic parents. The rights and obligations of the parties as well as their actions in cases of force majeure should be included in it. After the birth, parental rights over the child belong to the genetic parents. According to the law, the surrogate mother is a woman of child-bearing age who agrees to carry and give birth to a child for the genetic parents, and she doesn’t lay claim to be his mother.

Traditional surrogacy is illegal in Portugal except for some situations that give the right for a surrogate mother to be genetic (for example, if the future adoptive mother is completely barren).

Adoption of the law caused some debate within several Portuguese Christian Churches, though not among the once dominant Roman Catholic Church. Representatives of Brazilian and US based evangelical and pentecostal churches condemn surrogacy and suggest that infertile couples can/must (depending on the Church) pursue conventional adoption (national or transnational even though the later is banned by law).

Heterosexual and Lesbian Couples can become parents via surrogacy in Portugal as by 2016 all the risks of the program are provided and regulated by law (for example, the occurrence of developmental defects of the baby, miscarriage or abortion). Male Homosexual couples and single men and women of any sexual orientation have not yet been included, but they are not addressed specifically by the law which leaves an opening for a future revision in a more encompassing way). One such revision is on the current manifestos of several parties (the Left Bloc, PAN – People–Animals–Nature and Os Verdes – The Greens). They can count on the repeated opposition of the populist right party PP-CDS and the Portuguese Communist Party, the most socially conservative parties in parliament.

This means that gay couples are banned from altruistic surrogacy within Portugal and since the Constitution of Portugal explicitly bans discrimination on the basis of sexual orientation, this could be unconstitutional.