Country: Greece
Date: June 2022
Greece: Legislation
Surrogacy in Greece is regulated by laws as well as by articles of the Greek Civil Code, court decisions and decisions of the National Authority for Medically Assisted Reproduction (NAMAR). The first law is Law 3089/2022[1] , followed three years later by Law 3305/2005[2] . The latest law is Law 4272/2014[3] which repeals some paragraphs of the 2005 law. In the Civil Code, articles 1455 to 1464[4] also regulate surrogacy. Some court decisions and NAMAR decisions also have a regulatory character on the issue.
The 2002 law oversees legal questions, introducing new articles to the Civil Code on parentage and succession. It is also this law that regulates assisted reproductive technologies (ART), who has access to them and defines kinship as a “socio-sentimental relationship“[5] with an emphasis on the choice and the desire of a child as more important than biological relationships[6]. It prohibits cloning and sex selection for procreation[7] .
The 2005 law reinforces the 2002 law by providing details on biomedical aspects, the issue of research on fertilized genetic material, the conditions for the creation and management of reproduction clinics, the introduction of penal and administrative sanctions if the conditions do not comply with the law. Finally, it introduces the creation of the independent National Authority for Medically Assisted Reproduction (NAMAR). This authority is intended to monitor the behaviour of centres and clinics to ensure that they comply with the 2002 and 2005 laws, as well as answering ethical questions from “commissioning parents” and doctors[8] . The Authority is composed of 8 members and 8 substitutes, from the legal and medical communities, with one of the members being familiar with medically assisted reproduction techniques[9]. It is also the Authority that decides on the amount of money surrogate mothers can receive in reimbursement and compensation[10] . The Authority had numerous funding problems and was dissolved in October 2020 with its successor set up in spring 2021[11] .
Article 1458 of the Civil Code defines surrogacy[12] as: the transfer of fertilized oocytes into the body of another woman (the egg should not be her own)[13]. The legislation states that only partial and altruistic surrogacy is allowed[14] . Partial is here understood as gestational, in the sense that full surrogacy also uses the genetic material of the surrogate mother, which is not allowed in Greece.
Article 1458 of the Civil Code emphasises the need for a court decision prior to insemination in recognition of an agreement as well as the parentage for the commissioning couple. It is the female commissioner who applies to the court[15] . The court’s decision to approve the agreement depends on several conditions set out in Article 1456 of the Civil Code: the request must be made by a woman, single, married or in a couple, who can prove her inability to carry a pregnancy to term, for medical, physical or psychological reasons[16] . The commissioner must not be older than 50 years to avoid elderly parents for the child[17]. The 2005 law specified that the commissioner must be a permanent resident of Greece, but Law 4272/2014 changed this condition, allowing individuals residing temporarily, without a minimum duration in Greece to have access to surrogacy arrangements[18]. However, two cases can be cited where the Single Judge Court of First Instance approved the application of single men, decision no. 2827/2008[19] of the Single Judge Court of First Instance of Athens and decision no. 13707/2009[20] of the Single Judge Court of First Instance of Thessaloniki both granted the authorisation of a surrogacy agreement for single men on the basis that the law was unconstitutional as it discriminated against men, provided that they were both unable to have a child. It should be noted, however, that the 2008 decision was subsequently overturned in 2010[21] .
Article 4 §1 of the 2005 law mentioned the maximum age of the surrogate mother at 50 years, but the decision n°73 of 24 January 2017 of the NAMAR brings a new condition: she has to be between 25 and 45 years old, having already had a child and less than two cesarean sections[22] . Another example is the decision n°224/2006 of the Court of First Instance of Corinth, which approved a 52 year old woman as a surrogate mother for her daughter who could not bear a child due to an illness[23] . The surrogate mother is also subject to health tests such as for HIV, Hepatitis and others[24] . Before the 2014 law, the surrogate mother also had to be a permanent resident in Greece but the new law allows her to have only a temporary residence with no minimum duration[25] .
Commercial surrogacy is prohibited by article 1458[26] of the Civil Code as well as article 13 §4 of Law 3305/2005[27] . According to the decision n°36 of the NAMAR, the compensation cannot be higher than €10.000 in total[28] . The compensation includes the expenses necessary to become pregnant, the duration of pregnancy, childbirth and postnatal period[29] . It also includes all losses, loss of earnings and money that she was deprived of in order to become pregnant, during the pregnancy, the birth and the puerperium (postnatal period) )[30] . There is also no remuneration possible for the intermediaries[31] which is prohibited under Article 26 §8 of Law 3305/2005.
Article 26(8) of Law 3305/2005 refers to the criminal and administrative sanctions in cases where the parties do not comply with Article 1458 of the Civil Code, Article 8 of Law 3089/2002 and Article 13 of Law 3305/2005[32] . Non-compliance is punishable by a prison sentence of at least two years and a fine of at least €1500. The paragraph also includes three other situations that are subject to the same sanctions: on advertising surrogacy[33] , on intermediaries and on those offering the services of intermediaries[34] .
Parentage in the context of surrogacy is established in Article 1464 of the Civil Code, referring to the decision of the court, which upon its authorisation, attributes parentage to the person who made the request, i.e. the commissioners[35] . If there was no court authorisation, then, according to Article 1463, the mother who gives birth is recognised as the legal mother and is responsible for the child[36] . In cases where the court has authorised the surrogacy arrangement but the surrogate mother is the genetic mother of the child, then she can claim parentage, according to paragraph §2 of the article and the pregnant woman is established as the legal mother according to paragraph §3[37] . The commissioner cannot get rid of their court-established parentage with the child once the child is born[38] .
The anonymity of sperm and egg providers is regulated by article 1460 of the Civil Code and the law of 2002[39] . There is the possibility of compensation for the loss of income and the stress of the procedure for egg “donation”, which is a maximum of €1500[40] . The maximum age for egg donors is 35 and 40 for sperm donors[41] . There is no limit to the number of times a woman can undergo fertility treatment for oocyte retrieval, nor is there a limit to how many oocytes are retrieved and fertilised in each treatment cycle[42] . In the case of egg donation, but also in the case of surrogacy, if the woman has a spouse, he must have given his consent for the procedure to take place[43] .
In 2015, NARMA identified 46 reproductive clinics and medical centres[44] .
Greece: MDS, Situations & trafficking of women and children
20 years after its legalization, the situation of surrogate mothers and children in Greece is far from clear. In view of article 1460 of the Civil Code, which guarantees the anonymity of the providers of genetic material, there are no specific rules allowing the child to know either its genetic origins nr its surrogate mother. This anonymity also shows the choice to put the interest of the social family (non biological) above the interests of the child to know their genetic and biological origins[45] . However, it seems that there is a discussion that has been opened up on the subject in Greece[46] . The child also does not have the right to challenge the legal relationship with the commissioner even when the surrogacy process has not complied with the legal provisions, i.e. the surrogate mother is the genetic mother[47]. The claim can only be made by the surrogate mother, within 6 months of the child’s birth, but the evidence must have already been provided[48] .
Despite the ban on remuneration and the so called “altruistic” wording, there is ample evidence that surrogacy and egg “donation” are in fact carried out for financial reasons[49]. Investigations by several researchers have shown that in several cases women offered to become surrogate mothers for financial reasons for themselves or their family members[50] . In addition, it is possible to observe surrogate mothers who pretend to be the commissioner’s best friends (in accordance with the principle of altruism) but in reality are usually younger non Greeks[51] than the so called parents or in some situations their foreign-born domestic workers[52]. In some cases, surrogate mothers may ask for sums which exceed the legal limit[53]. Even some doctors consider that surrogacy is simply an exchange between a woman with fertility problems [and] a woman with money problems”[54] i.e a commercial relationship.
Another problem arises from way the judges and court work. The decision of the trial judge dealing with applications for surrogacy agreements is more administrative than legal, more a matter of form and dogma than of a real examination of the situation[55]. There is very little control over the relationship between surrogate mothers and commissioners, which according to the law must be family or close friends[56]. Even before the 2014 law, there were no checks on whether or not one of the women aimed to stay in Greece as foreseen in the legal framework[57]. The only evidence required is medical certificates proving the commissioning woman’s inability to become pregnant or to carry a pregnancy to term[58] .
As far as the oocyte trade is concerned, there is an oversupply of oocytes, most probably linked to economy, considering the compensation that the retrieval allows the providers to receive[59] . It is also necessary to underline the health risks for providers during hormone treatments, with the possibility of severe and even life-threatening health complications[60] . The lack of regulations on the number of oocytes retrieved per treatment cycle is also a risk for providers who are given high doses of hormones for maximum oocyte yield. This not only affects the life of the providers but potentially the quality of the retrieved oocytes[61] . There are also questions about the risk of incest. Although there should be a limit to the number of children born to the same provider, this is not enforced because doctors like to favour women whose oocytes they know are valuable.
iin the coming years of congenital problems may arise in couples who share the same genetic material[62] . Finally, it seems clear from members of the industry themselves that many foreign women, including victims of prostitution, have had their oocytes harvested[63]. Although the intermediaries are forbidden by law, they are still involved and sometimes claim to have the best interests and concern for the providers, but the latter are used to giving the intermediaries a fee for putting them in touch with the doctors[64] .
Advertisement for surrogacy and oocyte retrieval, which is also normally prohibited, can easily be found[65]. In many cases, such advertisements are clearly[66]. Surrogacy is often advertised along with offers of attractive holidays, the destination is sold in addition to surrogacy services[67]for the so called “intending parents”.
12 years ago, when the law still restricted surrogacy to Greek citizens and permanent residents, many surrogacy procedures were already carried out illegally with a certificate given to the commissioner in the hospital once the surrogate mother had given birth[68]. It is also likely that very young women, barely adult, and claiming to do it only for the money, are being forced by intermediaries to become surrogates,[69], but also circumventing regulations that require surrogates to be at least 25 years old.
In 2013 the Greek National Bioethics Committee received complaints about illegal practices, including human trafficking, with the exploitation of non-residents, for oocyte retrieval, surrogacy as well as the use of prohibited drugs[70] . In 2019, the Greek police, with the support of Europol, uncovered a human trafficking network. Victims included pregnant Bulgarian women as well as Bulgarian, Russian and Georgian women for eggs harvesting[71]. These women were trafficked to Thessaloniki to sell the unborn children, some of whom were involved in surrogacy arrangements, or the oocytes to potential buyers[72] . Among those arrested, were medical professional such as obstetricians, nurses and doctors, but also legal practitioners such as lawyers.[73] The practice seems to have been taken over by the mafia and those with close contacts to politicians, as the well-known doctor Pantos seen posing with members of the Greek right and extreme right wing parties[74]. A testimony also uncovered the case of doctors giving bribes to Greek parliamentarians to keep legislation as permissive as possible[75] .
Obviously, Greece has tried to set up strict regulation to avoid trafficking, but it has been watered down over time, under pressure from doctors and encouraged by the potential income that reproductive tourism generates, thus allowing foreigners to commission the procedure, but also allowing foreign women, to trade their bodies, under the guise of a so-called altruistic system. This proves that regulation does not prevent trafficking and abuse. One can however underline the important concept of parenthood being seen as a socio-emotional relationship, which can be advantageous for adopted children but in this case, proves a disadvantage for the children who are commissioned as it denies them their right to know their genetic and biological origin.
[1] Council of Europe “Surrogate motherhood. Addendum to the replies to the questionnaire on access to medically assisted procreation (MAP) and on the right to know one’s origins for children born after MAP”, Bioethics Committee, 2021
[2] ibid
[3] ibid
[4] Council of Europe op cit; Davaki K. ‘Surrogacy Arrangements in Austerity Greece: policy considerations in a permissive regime’. in Davis M.(eds) Babies for Sale, 2017
[5] Kantsa, V. “Future investments: laws, technologies and the kinship order in Greece”, Nouvelles Questions Féministes, vol.39, 2020/2, pp. 77-89, p. 80
[6] ibid
[7] ibid
[8] ibid
[9] Kantsa, V. op cit.
[10] Council of Europe op cit.
[11] https://balkaninsight.com/2021/07/09/making-babies-pushing-boundaries-the-great-greek-fertility-market/
[12] Kipouridou, K. & Milapidou, M. “Chapter 5. Surrogacy in Greece. The legal framework: a viable model”. International Journal of Bioethics and Science Ethics, 2019, vol.30, 117-132.
[13] Translation by our team
[14] Council of Europe op cit
[15] ibid
[16] Kipouridou, K. & Milapidou, M. op cit; Kantsa, V. op cit
[17] Kantsa, V. op cit
[18] Council of Europe op cit
[19] Kipouridou, K. & Milapidou, M. op cit
[20] ibid
[21] Kipouridou, K. & Milapidou, M. op cit ; Zervogianni, E. “The changing concept of ‘family’ and challenges for family law in Greece” in Scherpe, J.M. (eds) European Family Law Volume II, The Changing Concept of ‘Family’ and Challenges for Domestic Family Law, 2016, Edward Elgar Publishing
[22] http://www.greeklawdigest.gr/topics/aspects-of-greek-civil-law/item/217-surrogacy-proceedings-in-greece-after-the-implementation-of-law-4272-2014 ; Kipouridou, K. & Milapidou, M. op cit
[23] Kipouridou, K. & Milapidou, M. op cit
[24] http://www.greeklawdigest.gr/topics/aspects-of-greek-civil-law/item/217-surrogacy-proceedings-in-greece-after-the-implementation-of-law-4272-2014>
[25] Council of Europe op cit
[26] Kipouridou, K. & Milapidou, M. op cit
[27] Council of Europe op cit
[28] Ibid
[29] Council of Europe op cit. Kipouridou, K. & Milapidou, M. op cit.
[30] Kipouridou, K. & Milapidou, M. op cit
[31] Council of Europe op cit
[32] Kipouridou, K. & Milapidou, M. op cit
[33] Council of Europe op cit
[34] https://balkaninsight.com/2021/07/09/making-babies-pushing-boundaries-the-great-greek-fertility-market/
[35] Kipouridou, K. & Milapidou, M. op cit; Council of Europe op cit
[36] Kipouridou, K. & Milapidou, M. op cit
[37] Council of Europe, op cit; Kipouridou, K. & Milapidou, M. op cit
[38] Zervogianni, E. “The changing concept of ‘family’ and challenges for family law in Greece” in Scherpe, J.M. (eds) European Family Law Volume II, The Changing Concept of ‘Family’ and Challenges for Domestic Family Law, 2016, Edward Elgar Publishing
[39] Kantsa, V. “Future investments: laws, technologies and the kinship order in Greece”, Nouvelles Questions Féministes, vol.39, 2020/2, pp. 77-89,
[40] https://balkaninsight.com/2021/07/09/making-babies-pushing-boundaries-the-great-greek-fertility-market/
[41] Kantsa, V. op cit
[42] https://balkaninsight.com/2021/07/09/making-babies-pushing-boundaries-the-great-greek-fertility-market/
[43] Brunet L, Carruthers J, Davaki K et al. A Comparative Study of the Regime of Surrogacy in EU Member States: Report Submitted to European Parliament’s Committee on Legal Affairs. 2013 < www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474403/IPOLJURI_ET(2013)474403_EN.pdf>
[44] Kantsa, V. op cit
[45] Zervogianni, E. “Regulating Surrogacy: Chances and Pitfalls”, Pro Justitia, v.1 2018
[46] Zervogianni, E. “The changing concept of ‘family’ and challenges for family law in Greece” in Scherpe, J.M. (eds) European Family Law Volume II, The Changing Concept of ‘Family’ and Challenges for Domestic Family Law, 2016, Edward Elgar Publishing
[47] Rokas, K.A. “Chapter 9: Greece” in Trimmings K. & Beaumont, P. (eds) International Surrogacy Arrangements : Legal Regulation at the International Level, 2013,
[48] Council of Europe, op cit
[49] Hatzis, A. “The Regulation of Surrogate Motherhood in Greece”. Working Paper, Social Sciences and Research Network. 2010 Athens: University
[50] Davaki, K., op cit; Brunet et al, op cit
[51] Hatzis A. op cit, Brunet et al, op cit
[52] Davaki, K. op cit; https://www.publicsenat.fr/article/societe/grece-le-commerce-lucratif-de-la-gpa-75298
[53] Fotiadi I. “The Greek ‘industry’ with surrogate mothers”. Kathimerini, 13 April as quoted in Davaki, K. op cit
[54] Legrand, S., “En Grèce, les petits arrangements du business des mères-porteuses”, Special correspondence, FranceTVInfo, 2014 (online <http://www.francetvinfo.fr/societe/loi-sur-la-famille/ gestation-pour-autrui/en-grece-les-petits-arrangements-du-business-des-meres-porteuses_706203.html>)
[55] Hatzis, A. op cit
[56] ibid
[57] Brunet et al, op cit
[58] Davaki, K., op cit
[59] Kantsa, V. “Future investments: laws, technologies and the kinship order in Greece”, Nouvelles Questions Féministes, vol.39, 2020/2, pp. 77-89
[60] https://balkaninsight.com/2021/07/09/making-babies-pushing-boundaries-the-great-greek-fertility-market/
[61] ibid
[62] ibid
[63] ibid
[64] ibid
[65] Davaki, K., op cit; ,https://balkaninsight.com/2021/07/09/making-babies-pushing-boundaries-the-great-greek-fertility-market/
[66] Davaki, K., op cit; https://balkaninsight.com/2021/07/09/making-babies-pushing-boundaries-the-great-greek-fertility-market, the underbelly of globalisation
[67] https://www.publicsenat.fr/article/societe/grece-le-commerce-lucratif-de-la-gpa-75298
[68] Hatzis, A. op cit
[69] https://www.publicsenat.fr/article/societe/grece-le-commerce-lucratif-de-la-gpa-75298
[70] Council of Europe, op cit.
[71] https://www.europol.europa.eu/media-press/newsroom/news/66-suspected-of-arranging-illegal-adoptions-and-surrogacies-and-human-egg-trafficking-in-greece
[72] ibid
[73] https://www.euronews.com/2019/09/27/greek-police-smash-alleged-500-000-baby-smuggling-network
[74] https://www.publicsenat.fr/article/societe/grece-le-commerce-lucratif-de-la-gpa-75298
[75] ibid