Surrogacy in Portugal is one of the most controversial topics during already almost 15 years. From one side the government voted for quite friendly legislation, from the other side all these initiatives were abolished by the Constitutional Court as contravening the Constitution.
Usage of assisted reproductive technologies as a way of infertility treatment is regulated in Portugal by Law 32/2006 dated 26.07.2006, Law 25/2016 dated 22.08.2016, which has made changes to the Law 32/2006 related to surrogacy provisions, and Regulatory Decree 6/2017 dated 31.07.2017 that regulates procedural issues of surrogacy.
Who is able to use surrogacy in Portugal?
According to provisions of these normative acts, it is possible to use gestational surrogacy in Portugal for both Portuguese and foreign citizens in case they have strict medical indications for it, for example in case of absence of the uterus or any other diseases of this organ, that enables a woman to carry a child (if it is a same-sex couple, both women should be medically unable to carry a baby). Surrogacy services are understood here as a way of treatment and help from woman to woman, so it is possible to use only in altruistic from for heterosexual and homosexual female couples. These services are not available for single parents (both male and female), as well as for homosexual male couples, as they are not able to carry babies a priori.
Any payments to surrogate mother are prohibited here and can cause penalties or even 2 years of imprisonment for Intended Parents. The same situation is with intermediary activity (work of agencies) or performing surrogacy program in any other center that one that was authorized by authorities, all these is forbidden.
What is the procedure?
According to the Regulatory Decree 6/2017, all couples intended to use surrogacy services in Portugal should send their medical and legal documents to the National Council of Medically Assisted Procreation of Portugal according to a specific list and to get their authorization for surrogacy contract conclusion. Moreover, there should be some kind of “draft form” of surrogacy contract with its essential provisions protecting rights of each side of the contract. The procedure of getting such kind of authorization can take from 3 to 6 months.
Unconstitutional provisions
At the same time, ruling no. 225/2018 of the Constitutional Court of 24 April 2018 declared unconstitutional some rules of the Law of PMA regarding surrogacy (Law 25/2016), which led the CNPMA (National Council of Medically Assisted Procreation of Portugal) to declare as extinct all the then underway processes of authorization to conclude surrogacy contracts. So, currently this procedure doesn’t work.
Regarding donor’s oocytes, previously all donors were anonymous, but later the Constitutional Court decided that their personal data should be available due to the right of children to know their identity. Currently all children born from donor’s gametes have the right to request their personal data from breeding centers when they reach the age of 18 years old. This provision makes process of donor’s searching much longer and more expensive, as not all donors are ready to be non-anonymous.
In July 2019, the Assembly of the Republic approved a new legislative initiative which, in the process of preventive inspection of constitutionality, was once again declared unconstitutional in two provisions, which led the President of the Republic to return the Decree to the Assembly of the Republic, without promulgation.
Is surrogacy in Portugal legal or not?
In conclusion, for the moment there is no legal framework that regulates surrogacy in Portugal, so the practice of this technique is not legal.
Portuguese citizens should find options abroad for their infertility treatment, until the surrogacy law is established. We want to encourage you to learn more about our surrogacy programs in Belarus.
Don’t hesitate contacting us if you have any further questions, we will be happy to help!
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