In August 2023, an emblematic case of surrogacy was revealed in Portugal, involving a couple of women and a Brazilian woman in the city of Braga [1].

The Brazilian migrant, who was facing financial difficulties, reportedly “agreed” to carry a child for the couple, one of whom was also Brazilian.

The situation worsened when, during the pregnancy, the surrogate mother found herself unemployed and homeless, leading her to move into the couple’s house who offered her the surrogacy. Additionally, during this period, she was also receiving a monthly payment.

The couple, who already intended to bypass the healthcare system, allegedly prevented the Brazilian woman from accessing necessary medical care so that on the day of delivery, only the commissioning parents were presented as the child’s mothers.

The situation escalated when, on June 19, after giving birth, the mother terminated the contract and, despite threats and coercion, maintained her regret and wanted to keep her child.

As we will see throughout this article, Portugal does not allow commercial surrogacy and provides for the surrogate mother’s right to revoke until the child’s registration deadline, meaning 20 days after birth. Until the end of this period, this right is guaranteed according to the Portuguese Supreme Court, aiming to safeguard the surrogate mother’s human dignity by not depriving her of the right to revoke (the issue is not exhausted here).

Far from being an exceptional or extreme case, what happened reflects the essence of surrogacy: exploitation of a woman’s vulnerability and reproductive capacity, violation of her human rights, and of the child she gives birth to, who often faces the frequent destiny of children born through surrogacy, ending up being placed in a temporary care center.

Vulnerability is exacerbated by the intersection of migration, by the failure of the legal system itself to recognize that a practice based on exploitation and misogyny is unable to reproduce ethically. Surrogacy does not exist for these reasons.

Legislative Situation of Surrogacy in Portugal

Announcement from the Council of Ministers made on November 16, 2023 [2]:

The Council announces that it has approved the decree-law regulating the legal regime applicable to surrogacy. This is the most recent legislative measure in the process of opening up the practice in Portugal.

“The law that has just been approved creates the conditions for the full implementation of the surrogacy regime, including the administrative procedure for prior authorization to conclude the surrogacy contract and the parental protection regime applicable to the beneficiaries and the surrogate mother.”

What the Council announces with these words is the confirmation of the understanding that Portuguese legislators have of the legality of surrogacy, as well as what they call “parental protection,” which, in the case of Portugal, means: for the commissioning parents, the presumption of parenthood, while for the already altruistic surrogate mother, a mere 20-day window for the right to revoke.

This latest communication from the Council of Ministers neutralizes the Portuguese question regarding the regulation of surrogacy. This is because a decree-law has been approved, and a decree-law has the same legal value as a law. The decree was preceded by eight years of procedures and disagreements on the constitutionality of Law 25-2016. It neutralizes apparent attempts to nullify the law through allegations of unconstitutionality raised repeatedly.

Aspects of Surrogacy in Portugal

Only heterosexual and lesbian couples, married or cohabiting, whose female partner or one of the female partners of the lesbian couple cannot carry a child due to medical reasons such as uterine lesions or other uterine dysfunction, or the absence of a uterus, can resort to surrogacy. Physiological infertility is thus recognized by this law but not social infertility. However, the unborn child must have a genetic link to at least one of the commissioning parents. This means that the genetic material of at least one of the commissioning parents (sperm from the intended father or oocytes from the intended mother) must have been used in the surrogacy process.

Surrogacy can only be gestational, meaning the surrogate mother cannot be the oocyte donor under any circumstances. Therefore, she has no genetic link to the child, although there is a biological link due to the pregnancy itself.

Surrogacy can only be altruistic. Commercial surrogacy is prohibited by Law No. 32/2006 (Article 8, paragraph 2). The surrogate mother’s medical expenses are reimbursed, as well as her transportation expenses related to the surrogacy process (travel to medical appointments, etc.). Any other form of payment or gift from the commissioning parents to the surrogate mother is strictly prohibited. Additionally, the surrogate mother is not entitled to any compensation for loss of income.

Intermediaries between the commissioning parents and the surrogate mother (doctors, ART agencies, etc.) must not derive any economic benefit from promoting and/or signing a surrogacy contract. Violating this can result in imprisonment for up to five years (Article 8, paragraph 6 of Law No. 32/2006).

Promotion and advertising of surrogacy are prohibited and punishable by two years of imprisonment. Only informative announcements of medical procedures used in surrogacy in accordance with the law and made by ART centers, whether public or private, accredited by the Ministry of Health, are allowed.

It is mandatory for the commissioning parents and the surrogate mother to enter into a written contract to define the terms of the surrogacy pregnancy and the arrangements to be made in case of voluntary termination of pregnancy (abortion) or fetal malformation. Surrogacy contracts, and therefore surrogacy itself, are not allowed in situations of economic and/or employment subordination between the surrogate mother and the commissioning parents (regardless of which party is in a subordinate position). The contract must not violate the freedom, dignity, and rights of the surrogate mother in any way. Contracts must be approved by the National Council for Assisted Reproductive Technologies. The surrogate mother has the right of withdrawal at the beginning of the medical procedure in all cases.

The commissioning parents are automatically recognized as the child’s legal parents(!)

There are no provisions regarding couples, whether Portuguese or not, coming from abroad to undergo surrogacy in Portugal or vice versa for Portuguese couples going abroad for surrogacy.

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