Surrogacy in Portugal | Legislation | Eligibility | Process | Costs

Surrogacy in Portugal: Your Insightful Guide on the Law, Process, and Costs

For some couples, infertility or medical conditions like absent or damaged uterus, severe endometriosis, or repeated miscarriages can make pregnancy impossible. While many couples have to seek options abroad, Portugal is one of a few countries that offers gestational surrogacy, also known as “Gestação de Substituição” to its citizens and legal residents. This process allows intended parents to have a biological child through in vitro fertilization (IVF) with the help of a gestational carrier. In some cases, when the prospective mother cannot provide the oocytes, the donor’s eggs are fertilized with the prospective father’s sperm. In such cases, the intended father will be genetically related to the child.

Having explored the reasons why Portugal’s surrogacy program can be a welcome option for many couples, let’s delve into the process. This article will explore the eligibility criteria, the medical journey using IVF, and the essential legal steps in pursuing surrogacy within the Portuguese framework. Let’s begin by looking at the legislation and the medical situations that qualify for gestational surrogacy treatment.

Portuguese Surrogacy Law

Since 2006, surrogacy in Portugal has been strictly regulated and only allowed in exceptional cases outlined in Article 8 of Law No. 32/2006. These cases involve medical conditions that prevent pregnancy, such as a missing (either congenitally or following hysterectomy) or damaged uterus, repeated failed IVF cycles, or a health risk to the woman if she carries a pregnancy [Article 8 (2)].

In November 2021, The Portuguese Parliament passed a new surrogacy law following a Constitutional Court request. Similar to the previous law, it prohibits commercial surrogacy arrangements but allows reimbursement for medical expenses, pregnancy care, postpartum care, incidentals, and lost wages.

The new law also requires gestational surrogates to have previously given birth and allows them to keep the newborn until registration (maximum 20 days after birth).

Earlier, Portugal first attempted to legalize gestational surrogacy in August 2016, proposing it as being altruistic, forbidding a genetic connection between the surrogate and the child (the gestational carrier’s oocytes cannot be used in any case), requiring a biological relationship between one of the legal parents and the child (either prospective mother’s oocytes or/and prospective father’s sperm must be used to create an embryo, the egg donation or sperm donation can be utilized); and demanding a legal contract between the surrogate and the legal parents. The law was approved, regulated, and entered into force in August 2017. However, months later, the Constitutional Court revised its decision and ruled some of its norms unconstitutional, because the surrogacy contracts weren’t clear enough legally, the surrogate wasn’t given enough time to change her mind, and it didn’t guarantee the children’s rights to know their biological origins.

This led to a complex legal process and issues in assisted reproductive treatments that entailed the anonymity of the donors. Finally, in November 2021, a new law addressing these issues was enacted, though regulations are still pending.

While a 2016 law (Law No. 25/2016) and a 2021 law (Law No. 90/2021) allowed surrogacy arrangements in some cases, they remain restricted to situations where the intended mother cannot carry a pregnancy due to medical reasons. The third modification of Law No. 32/2006 further clarifies this, and outlines specific scenarios where surrogacy is permitted.

Intended Parents’ Eligibility and Surrogacy Process in Portugal:

Portugal’s surrogacy laws (2016 & 2021) restrict eligibility to heterosexual couples, lesbian couples where both women cannot carry a pregnancy, and single women with medical conditions preventing pregnancy. This is further defined by Law No. 32/2006.
Only authorized medical clinics can perform the procedure. The National Council for Assisted Reproductive Technologies oversees the process and requires approval of surrogacy contracts.
Single men, gay men, and gay couples are currently ineligible.

Requirements and Consent:

All parties involved must provide written, informed consent before starting the process. This includes understanding the medical risks, ethical implications, and legal rights.
The surrogate mother relinquishes parental rights after birth, and the newborn is legally recognized as the intended parents’ child.
The surrogacy contract cannot impose restrictions on the surrogate’s behavior or violate her rights.

Will There Be a New Version of the Law?

A more inclusive legal framework is still being envisaged to expand eligibility, and further public consultation is planned to refine the final criteria.

Does Surrogacy Law in Portugal Allow Foreigner Couples to Apply?

According to current legislation, only Portuguese citizens, or if at least one intended parent is a permanent resident in Portugal in case they have strict medical indications for it, have access to the gestational surrogacy treatment. While the current law excludes foreign couples, there are ongoing discussions about expanding eligibility.

Egg and Sperm Donation Process

In April 2018, the landscape of egg and sperm donation in Portugal underwent an unexpected shift. While deliberating on surrogacy legislation, the Portuguese Constitutional Court inadvertently banned donor anonymity, a practice it had previously approved just nine years earlier. This decision, made by the highest court in the land, was final.

Egg Donation in Portugal

In Portugal, egg donation is legal, regulated, and, unlike in most countries, non–anonymous. The process is guided by strong ethical and altruistic principles. Everything is transparent and controlled, with all donations registered in the national ART authority’s database. By law, egg donors receive a fixed compensation of €878 per donation, regardless of the clinic (public or private).

With a diverse donor pool, recipients in Portugal have a wide range of options to find a suitable match. Donors come from various backgrounds, with Hispanic/Latino and Caucasian ethnicities being most prevalent. Some clinics may offer access to donors of Scandinavian, Middle Eastern (Arab, Turkish, and others), Mulatto, and African/Black backgrounds. Additionally, a few clinics may facilitate donation cycles involving donors from mixed races.

A huge advantage of choosing an egg donor in Portugal is not only the Open-identity donor (or Open-ID) framework, but also the transparency of donor information. Intended parents and single women opting for donation have access to detailed donor profiles, which include physical traits, information on their education level, and personality traits. Egg donors are matched with recipients using basic characteristics like race, facial features, skin color, hair color, and eye color. Other criteria include complexion, height, weight, and Rh factor. This matching process ensures the donor and the egg recipient are as similar as possible. For example, if the intended mother has brown eyes and curly hair, her future child will likely be brown–eyed and curly–haired as well.

One egg donor’s maximum number of donations is limited to four in their lifetime. This means that each donor can donate only four times (between the ages of 18 and 35), and each donation will be registered. After the final donation, they are no longer eligible. The process is sensitive and secure, and infertile couples can be assured that the altruistic women donating eggs have already been assessed and screened for suitability.

Portuguese Law on Sperm Donation

Similar to egg donation, sperm donation is legalized, regulated, and non–anonymous. While Hispanic/Latino donors are most common, clinics also offer sperm from Caucasian, Scandinavian, Asian, Middle Eastern, and African backgrounds. Fertility clinics ensure a secure donation process for single women and couples undergoing IVF with donor sperm. Before providing samples, potential donors undergo rigorous medical, psychological, and genetic screening.

Donors can donate up to eight times in their lifetime. Similar to egg donation, the sperm donation process is controlled and transparent—each donation is registered in the database of the national ART authority. As with egg donation, sperm donors receive a fixed compensation of €44 per donation (fixed by law), regardless of the clinic (public or private).

Importing/Shipping Gametes and Embryos to Portugal

Importing sperm, eggs, or embryos into Portugal for fertility treatments is a complex process with specific regulations. Unlike domestic donations, these genetic materials must comply with additional requirements set by the Portuguese authorities. Fertility clinics can guide intended parents through this process, which likely involves extra paperwork, authorization from the originating country, and adherence to strict transport and storage protocols to ensure viability and safety.

Sex Selection of an Embryo

Selecting the gender of the preimplantation embryo is allowed only to prevent the transmission of serious genetic disease. Sex selection for “family balancing” reasons is not allowed.

Surrogacy Process in Portugal

The surrogacy process in Portugal involves several steps: selection of the surrogate, prescreening and background check of all parties, requesting authorization for a gestational surrogacy from the Medically Assisted National Procreation Council, singing the legal contract with a surrogate, and starting an IVF treatment to make embryos or using cryopreserved embryos (if having embryos; transportation of vitrified embryos if necessary). Once the embryos are created or transported to the Portuguese clinic, the transfer can take place.

The authorization of the procedure

The authorization process involves two main steps. First, intended parents must receive official approval for surrogacy itself. Second, the legal contract outlining the rights and responsibilities of all parties requires separate approval.

Selection of the surrogate & prescreening

The first step is finding a suitable surrogate mother. Ideally, parents–to–be can choose a close relative, creating a potentially faster and more trusting connection.

However, if a family member isn’t available, other options exist. They can contact surrogacy agencies that offer matching services. These agencies can help interview and choose a qualified surrogate.

Once the surrogate is selected, all parties undergo prescreening and background checks.

Formal Application and Approval:

Once a surrogate is chosen, all parties submit a formal online application to the Medically Assisted National Procreation Council “Conselho Nacional de Procriação Medicamente Assistida” (CNPMA) requesting authorization for gestational altruistic surrogacy. This application must be accompanied by a declaration from a reproductive center confirming the intended mother’s medical eligibility for surrogacy according to the criteria established by law.

The CNPMA, the official body overseeing surrogacy, reviews each application on a case–by–case basis. They have 60 days to accept or reject the request. If accepted, it is sent to the Portuguese Medical Association (OM) for further evaluation of the intended mother’s medical situation. The OM has 60 days to respond. Finally, the CNPMA makes a final decision within 60 days of receiving the OM’s response. The entire process typically takes a maximum of 180 days.

Legal Contract and Treatment:

Once approved, parents and the surrogate sign a legally required contract. Each surrogacy agreement includes provisions on two important issues addressed by the Portuguese Law: “to be observed in the event of a possible voluntary termination of pregnancy in accordance with the legislation in force,” and “cannot impose behavior restrictions to the gestational women, neither rules that go against the surrogate’s rights”. The contract itself outlines these details, ensuring the surrogate’s right to terminate a pregnancy within legal guidelines and prohibiting any restrictions on her behavior or violation of her rights. It is also suggested that the rights and duties of the parties entering into the process be outlined.

Portuguese legislation on surrogacy prohibits any payment or donation made by the prospective parents to the surrogate. The commercial arrangements are considered null and void. The intended parents can only reimburse the surrogate for reasonable expenses directly related to her pregnancy, such as insurance (including premiums), medical care (screenings, consultations, tests, procedures, and prenatal, neonatal, and postnatal care, medical procedures to treat injury or disease while being pregnant), medications, and maternity costs associated with the birth of a child (maternity hospital fees, meds, procedures).

Following the completion of the legal formalities, the medical aspects of surrogacy can begin. This typically involves IVF (In Vitro Fertilization) to create embryos, which are then transferred to the surrogate’s uterus for gestation.

Birth Registration

In Portugal, registering a child’s birth is mandatory, even if the parents are foreigners. This needs to be completed within 20 days of birth.

For unmarried couples, the process differs slightly. If the father is present at the registration, he can acknowledge paternity at that time. If the father cannot be present, voluntary recognition of paternity can be completed later.

Portuguese Birth Certificates

A birth certificate can be obtained for any child born in Portugal. This document verifies the information recorded in the birth registry.

A typical Portuguese birth certificate includes:

Full name(s) of the child
Sex
Date and exact time of birth
Location of birth (parish and municipality)
Full names, ages, marital statuses, birthplaces, and residences of both parents and grandparents

Who can obtain a Birth Certificate?

Anyone has the right to request a birth certificate from the Civil Registry database, with some exceptions, such as adoption or sex change records.

Right to Portuguese Nationality

Children born in Portugal to foreign parents are entitled to Portuguese nationality if, but only if one parent has legal residency in Portugal at the time of birth.

Portuguese Citizen Card

Children registered in Portugal and granted citizenship can receive a Portuguese Citizen Card.

How Much Does Surrogacy Cost in Portugal?

Since Portuguese law restricts surrogacy to altruistic arrangements, there are no commercial surrogacy agencies operating in the country. However, intended parents can still incur expenses during the process.

Here is a breakdown of potential costs:

Medical Costs: Gestational surrogacy itself is performed free of charge through the National Health Service (NHS) but on a first–come basis.
Legal Fees: There may be legal fees associated with drafting and reviewing the surrogacy contract.
Surrogate Reimbursements: Intended parents can reimburse the surrogate for reasonable expenses related to her pregnancy, such as medical care, medications, maternity costs, and insurance premiums.
Travel and Accommodation: There may be additional costs for travel and accommodation for the intended parents or the surrogate, depending on their circumstances.

Cross–Border Surrogacy Programs:

Some international agencies offer cross–border surrogacy programs that include guaranteed birth in Portugal. These programs typically involve:

In Vitro Fertilization (IVF) with Preimplantation Genetic Diagnosis (PGD–NGS): This can be performed in another country where commercial surrogacy is legal.
Delivery by Surrogate in Portugal: The chosen surrogate travels to Portugal for medical monitoring of the pregnancy and delivery.
Legal Support: The agency may assist with legal aspects like birth certificate registration and simplifying the legalization process for Portuguese citizenship for the child born through surrogacy.

Costs of Cross–Border Surrogacy Programs:

These programs can be significantly more expensive than surrogacy within Portugal due to the additional services provided, starting at €60,000.

Important Considerations:

Cross–border surrogacy programs can be complex and involve legal and ethical considerations across multiple countries. That is why it is essential to thoroughly research any agency offering such programs and consult with a lawyer specializing in international surrogacy law.

Final Notes

Portuguese infertile couples and legal residents diagnosed with damaged uterus or disease of this organ have access to medically assisted reproduction services and gestational surrogacy treatment. Portugal’s unique law allows surrogacy arrangements solely on an altruistic basis. Surrogate mothers are not financially compensated beyond reimbursements for pregnancy–related expenses. Additionally, the law ensures the well–being of the child and the surrogate by prohibiting the gestational carrier from keeping the baby after a 20–day period following birth.

The surrogacy process in Portugal is tightly regulated to ensure a safe and ethical journey for everyone involved. This legal framework involves obtaining authorization for the procedure, fulfilling specific eligibility criteria, and adhering to a legally binding contract that outlines the rights and responsibilities of all parties.

While Portugal offers a unique and welcoming surrogacy program for eligible couples, remember it is a significant undertaking. In addition to the legal aspects covered in this article, the emotional journey of surrogacy is equally important. We highly recommend researching thoroughly, consulting with medical professionals and legal counsel specializing in Portuguese surrogacy law, and building a strong support system throughout the process.

Resources:

1. National Council for Medically Assisted Procreation (Portugal)

2. Vera Lúcia Raposo. The new Portuguese law on surrogacy — The story of how a promising law does not really regulate surrogacy arrangements. JBRA Assist Reprod. 2017 Jul.–Sep.; 21(3): 230–239. doi: 10.5935/1518-0557.20170044. PMCID: PMC5574646. PMID: 28837033.

3. Revista de Bioética y Derecho version. Online ISSN 1886–5887. Rev. Bioética y Derecho no.56 Barcelona, 2022. E–pub 17–Jul–2023. https://dx.doi.org/10.1344/rbd2022.56.39614. DOSIER SOBRE GESTACIÓN POR SUSTITUCIÓN. Legal initiative for gestational surrogacy in Portugal: an overview of the legal, regulatory, and ethical issues.

4. Diário da República, 1.ª série — N.º 146 — 31 de julho de 2017. SAÚDE. Decreto Regulamentar

5. Ana Sousa Ramos, SEC’s ex–President. Clinic Embryologists Section from Portuguese Society of Medical Reproduction (SPMR). Publicado en la revista 23 de octubre de 2018. SURROGACY IN PORTUGAL

6. Library of Congress. Portugal: New Law Further Regulates Surrogate Pregnancy

7. Neves, Maria Patrão. Rev. bioét. derecho ; (56): 55–74, Nov. 2022. Artigo em Inglês | IBECS | ID: ibc-210237. Biblioteca responsável: ES1.1 Localização: ES15.1 – BNCS. Legal initiative for Gestational Surrogacy in Portugal: An overview of the legal, regulatory, and ethical issues / Iniciativa legal per a la gestació subrogada a Portugal: una visió general de les qüestions legals, reglamentàries i ètiques / Iniciativa legal para la gestación subrogada en Portugal: una visión general de las cuestiones legales, reglamentarias y éticas

8. Cross–Border Legal Recognition of Parenthood in the EU. Policy Department for Citizens’ Rights and Constitutional Affairs Directorate –General for Internal Policies. PE 746.632 – April 2023.

9. Birth, adoption and surrogacy in Portugal

10. FACULDADE DE DIREITO, UNIVERSIDADE NOVA DE LISBOA. Surrogacy in Portugal: A legal perspective: The before, the now and the possible after. Vera Esteves Cardoso. 15/05/2014