The Prime Minister of Portugal has finally enacted the surrogacy law, long awaited by citizens and approved by the Portuguese Parliament last week.
The Portuguese law on surrogacy, the Constitutional Court's veto, and previous attempts
In Portugal, there have been several attempts to establish legislation on surrogacy. The first law came into force in 2017 but was declared unconstitutional on April 24, 2018, by the Constitutional Court. Another attempt was launched in 2019 with a new bill, but this time it failed due to the lack of agreement among members of parliament regarding the time granted to the surrogate mother to decide on the recognition of the genetic parents as the legal parents of the newborn.
Finally, all parties involved are in agreement, and the new decision appears to have no further obstacles. Surrogacy in Portugal is now possible and properly regulated.
The most important factor decisive for the approval of the procedure is a right of "reconsideration" that grants the pregnant mother a period of 20 days after the birth. During this period, she can reconsider her decision and freely choose to keep the baby and, therefore, not hand it over to the intended parents.
Furthermore, it has been specified that only women who certify a permanent inability to conceive can access the procedure. Therefore, they can initiate surrogacy in Portugal. Heterosexual couples, whether married or cohabiting, and female same-sex couples are eligible. Male couples and single men are not eligible for surrogacy in Spain.
Another factor that has contributed to the law's approval is that access to the program requires prior approval from the College of Physicians and the College of Psychologists, who will determine whether the surrogate mother is suitable. Furthermore, the law stipulates that the surrogate mother should preferably already have at least one child.
Surrogacy is based on solidarity and is therefore free of charge. Only medical expenses may be included and must be paid by the intended parents. It is also prohibited to include clauses in the contract that stipulate donations or similar arrangements.
Therefore, the entire relationship will be governed by a joint contract, which will also include by law clauses aimed at regulating any gestational problem such as premature births, abortions, etc.
Finally, other requirements necessary for access to the practice in the Portuguese State are:
- Being a permanent resident in Portuguese territory (regardless of the parents' nationality).
- The use of genetic material (oocytes or sperm) from at least one partner is necessary. Furthermore, in all cases, the use of the gestational mother's genetic material is prohibited.
Conclusions. Although surrogacy is a reality in Portugal, implementing a program there is complex. On the one hand, it is for people who reside permanently in Portugal. On the other hand, the surrogate mother's right to keep the child, even if she retains legal guardianship as a person and as a woman, leaves the intended parents in a state of uncertainty and insecurity.
