Surrogacy - Search
Finland -
Legal aspects
5. Is surrogacy prohibited in your country?
a. any form of surrogacy Yes.
Surrogacy arrangements that involve performing of assisted fertility treatments are prohibited by law in Finland. As all surrogacy arrangements facilitated by fertility treatments are prohibited, it is not in these cases relevant whether the arrangement is commercial or not.
If the surrogate mother becomes pregnant for the purposes of surrogacy without assistance from the fertility clinics (e.g. by sexual intercourse), surrogacy arrangements are not prohibited. However, there is no information whether such arrangements take place in practice.
Although only surrogacy arrangements performed by assisted fertilization are prohibited by the Act on Assisted Fertility Treatments, Section 5 of the Act (as amended by the Act 22/2012) prohibits granting adoption “if any remuneration for the adoption has been given or promised or if someone other than the prospective adopter has, with a view to the adoption being granted, made or undertaken to make remunerative payments for the maintenance of the child. Any contract or commitment concerning the payment of remuneration referred to in subsection 1 shall be null and void"
b. only specific forms of surrogacy (e.g. commercial) (please specify) YES, please see answer to question 5 a above
Denmark -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother No
b. intended parent(s)
c. gamete donor
d. facilitator
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) No
Denmark -
Legal aspects
5. Is surrogacy prohibited in your country?
a. any form of surrogacy Yes
b. only specific forms of surrogacy (e.g. commercial) (please specify) No.
According to § 13 in the Danish Act on Assisted Reproduction, assisted reproduction cannot be established in relation to an agreement between the woman, who seeks to be pregnant, and someone else, who wishes for her to give birth to a child for them (surrogacy).
Finland -
Oocyte donation
8. Can the surrogate also be the oocyte donor? Not applicable, as medically assisted surrogacy is prohibited.
Luxembourg -
Current debate and specific situations
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level Yes
19. Please specify any additional relevant aspects which were not mentioned.
Draft law no 6568 proposes to prohibit surrogacy (“any agreement for surrogacy is void”).
See the recent opinion of the NEC: MAP, Surrogacy anonymously: so many ethical challenges to society (pages 24-26)
http://www.cne.public.lu/publications/avis/Avis_26.pdf
Lithuania -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? There are no specific provisions in the Lithuanian law regarding criminalization of surrogacy and there have been no legal surrogacy cases in Lithuania.
a. surrogate mother No
b. intended parent(s) No
c. gamete donor No
d. facilitator NA
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) No
Luxembourg -
Legal aspects
5. Is surrogacy prohibited in your country?
a. any form of surrogacy No
b. only specific forms of surrogacy (e.g. commercial) (please specify) No
Norvège -
Legal regulation
1. Is surrogacy regulated by a specific law in your country? No specific law, but specific provisions in more general laws
2. Is surrogacy regulated in another way? (please specify) Yes.
Access to medically assisted procreation (MAP) services (in Norway) is regulated in the Act relating to the application of biotechnology in human medicine, etc. [The Biotechnology Act]. According to Section 2-15 an embryo may only be implanted in the womb of the woman who is to be the child's mother. Furthermore, embryo donation is not allowed. Single women do not have access to oocyte donation, and couples may use either oocyte or sperm donation. (An exception has been made for same-sex couples so that an oocyte may be collected from one of the women and the embryo implanted into the womb of the other woman in the couple.)
This implies that surrogacy is not allowed according to the Biotechnology Act. Sanctions for breach of prohibitions in the Biotechnology Act apply to medical personnel etc, but not for the intending parents or the surrogate mother.
Furthermore, an agreement to give birth to a child for another woman is not binding according to the Act relating to Children and Parents [The Children Act] section 2.
To sum up: Some forms of surrogacy are expressly prohibited by law, while others are not expressly prohibited, notwithstanding - the law stipulates that agreements to give birth to a child for another woman is not binding, and consequently surrogacy arrangements cannot be enforced.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? No
4. Is there a legal definition of the term “surrogacy”? (please specify) No
San Marino -
Legal regulation
1. Is surrogacy regulated by a specific law in your country? No.
There is no specific law in Republic of San Marino.
In case of infertile heterosexual couples are guaranteed links with the Italian reference centers to proceed with the medical procedure in order to proceed with the medically assisted fertilization. Therefore, the laws that underlie these subjects are Italian.
In San Marino as in many Italian hospitals, obstetrics deals with physiological pregnancies, while for those at risk is used to have the Rimini (Italy) hospital consulting for the guarantee offered by the neonatology service. However, it is easy to say that our hospital, like many in Italy, do not have a structure that deals with fertility treatment that would require a contribution offered by a molecular biology and cellular service, and cryopreservation. We have only a gynecology and obstetrics service that deals with the health of women and pregnancy, childbirth and the postnatal period but not of assisted reproductive technology.
Those who want to make this kind of surgery have to go to an Italian structure and pay all procedures of their own pockets. San Marino covers only the pharmaceutical expenses for two cycles of therapy linked to the induction of ovulation in the woman to perform the oocytes explantation. At the failure of the second attempt, if there are no frozen embryos to replant and the couple wanted to undergo another treatment, the couple pays also drug costs.
If pregnancy occurs, after a few attempts (it makes no difference whether the first or second) through assisted reproduction techniques it will be followed as a normal pregnancy and all health coverage that are entitled to residents or citizens of the state.
The health care system provides drug treatment for two cycles of ovarian stimulation and all medical examinations pre and post implant.
To sum up:
None of the questions about surrogacy is affirmative for Republic of San Marino.
All questions related to medically assisted fertilization with the possible donation of gametes are the same answers from Italy, although the Italian Republic has bound to specific laws.
Infertility is followed free of charge by the health care system in respect of two pharmacological cycles and the pre and post implantation. The gamete extraction techniques, fertilization, implantation and embryo storage at Italian specialized structures are the responsibility of the couple as well as any subsequent pharmacological cycles to the two provided free and the possible pregnancy of control remains in the responsibility of the health care system.
2. Is surrogacy regulated in another way? (please specify) No. In case of infertile heterosexual couples are guaranteed links with the Italian reference centers to proceed with the medical procedure in order to proceed with the medical assisted fertilization. Therefore the laws that underlie these subjects are Italian.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? No
4. Is there a legal definition of the term “surrogacy”? (please specify) No
Romania -
Legal regulation
1. Is surrogacy regulated by a specific law in your country? No
2. Is surrogacy regulated in another way? (please specify) No. There are some notarial agreements between couples and surrogate mother before procedure and followed by adoption after birth.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? No
4. Is there a legal definition of the term “surrogacy”? (please specify) Not yet, but under discussion in the Parliament.
Türkiye -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy? As surrogacy is not recognised by law in Türkiye, there is not any answer to this question.
a. surrogate mother
b. oocyte donor
c. sperm donor
d. intended mother
e. intended father
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)?No
15. Is the existence of a genetic link required for establishing paternity/maternity? Yes. This can be done in case of any forensic medicine queries, not for surrogacy context which is unlawful in Türkiye
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? No
a. surrogate mother
b. oocyte donor
c. sperm donor
d. intended mother
e. intended father
17. Are foreign birth certificates in surrogacy cases registered in your country No
Sweden -
Oocyte donation
8. Can the surrogate also be the oocyte donor? NA
Switzerland -
Specific criteria
6. Is access to surrogacy subject to specific criteria? NA
a. medical criteria (e.g. infertility of the intended parent(s))
b. other criteria (please specify)
Andorra -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy? The Law of Civil Registry of July 11, 1996, Article 62 provides for the need to prove maternity and so this would be the surrogate mother.
a. surrogate mother
b. oocyte donor
c. sperm donor
d. intended mother
e. intended father
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Adoption could be possible.
15. Is the existence of a genetic link required for establishing paternity/maternity? N/A
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? N/A
a. surrogate mother
b. oocyte donor
c. sperm donor
d. intended mother
e. intended father
17. Are foreign birth certificates in surrogacy cases registered in your country N/A
Belgium -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother
Yes, under Belgian law, the woman who gives birth is the legal parent, even if this is not the genetic mother of the child.
b. oocyte donor
No, in the context of medically assisted procreation, no action concerning filiation or its economic effects is open to gamete donors.
c. sperm donor
No, idem, cf. B
d. intended mother
No, she can become a legal mother only through adoption
e. intended father
Yes conditional. Under the Civil Code, if the mother is not married, in casu the surrogate mother, the intended father may introduce a demand of paternity recognition
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes. The breaking of parentage can only occur with the adoption by the intended mother and this, following the waiving of the rights by the surrogate mother. But if the surrogate mother is married, the husband of the latter is considered the legal father and must therefore contest his paternity. Once the paternity is contested, the intended father can recognize the child.
15. Is the existence of a genetic link required for establishing paternity/maternity? No.
The legal mother is the woman who gives birth even if she is not the genetic mother.
If the surrogate mother is not married, the intended father can recognize the child at birth.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother Yes, she is the legal mother
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father Yes, if he recognizes the child at birth
17. Are foreign birth certificates in surrogacy cases registered in your country Yes. Despite the illegality of a surrogacy contract that results in a birth certificate drawn up abroad, parentage can be recognized in the best interests of the child.
Austria -
Financial aspects
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive:
a. refund of medical expenses N/A
b. refund of other expenses N/A
c. compensation for loss of income N/A
d. other compensation including non-pecuniary N/A
e. remuneration or comparable advantage N/A
- refund of medical expenses
- refund of other expenses
- compensation for loss of income
- other compensation including non-pecuniary
- remuneration or comparable advantage
Belgium -
Financial aspects
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive:
a. refund of medical expenses Yes
b. refund of other expenses No
c. compensation for loss of income No
d. other compensation including non-pecuniary No
e. remuneration or comparable advantage No
- refund of medical expenses
- refund of other expenses
- compensation for loss of income
- other compensation including non-pecuniary
- remuneration or comparable advantage
Belgium -
Oocyte donation
8. Can the surrogate also be the oocyte donor? No general prohibition but it depends on the conditions set by the fertilization centers
Austria -
Oocyte donation
8. Can the surrogate also be the oocyte donor? N/A
Czech Republic -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? Surrogacy is not explicitly prohibited and is commonly performed. So far this has not happened, although there are reports of overstepping Czech law. However, where there is no prosecutor (so far), there is no judge. If a plaintiff were found, any of the persons mentioned could be criminalized if they were found to have violated the prohibition against financial gain from the human body or the prohibition against trafficking in human beings, especially women and children.
a. surrogate mother
b. intended parent(s)
c. gamete donor
d. facilitator
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) Yes
For several years, the Czech Republic has been a country where Ukrainian surrogate mothers go to give birth and hand over their children to foreign clients, usually single men. However, giving birth and registering a child when both parents agree is not in itself a criminal offence. The procedure is cleverly planned by the actors into successive steps in different countries, where each partial step is legal. The Czech police have been monitoring these practices for a long time in cooperation with other countries. However, international surrogacy obviously cannot be solved without common international legislation.
Czech Republic -
Specific criteria
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) No
b. other criteria (please specify) No. Surrogacy is not regulated by law. The Czech MAR Society has issued recommendations (exclusively medical indications, weighting with the applicants' own gametes, transfer of a single embryo, age of the surrogate mother under 49, surrogate mothers’ permanent residence in the Czech Republic, etc.), but the compliance is not enforceable.
Czech Republic -
Services
9. Is it lawful to advertise surrogacy services? Yes. No specific prohibition, these procedures are offered, for example, on the sites of the MAR centers. However, the Czech Transplantation Act says: Advertising and advertising for the purpose of demand or offer of organs are prohibited
10. Is it lawful to remunerate a facilitator/surrogacy agency No. No agency officially exists yet. But at least one private centre seeks out prospective surrogate mothers and offers mediation to those interested in the procedure.
Czech Republic -
Legal aspects
5. Is surrogacy prohibited in your country?
a. any form of surrogacy No
b. only specific forms of surrogacy (e.g. commercial) (please specify) Yes. According to Czech legislation, the human body and its parts must not be a source of financial gain.
Iceland -
Current debate and specific situations
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level Yes
19. Please specify any additional relevant aspects which were not mentioned.
Draft proposal on surrogacy from Iceland
Background
- Working Group on Surrogacy appointed in January 2009 by the Health Minister to look into the ethical, legal and medical matters of surrogacy and whether it should be allowed in Iceland. Preliminary report in February 2010 whereby discussion of the matter was encouraged. Open symposium in March 2010. Final report of the Working Group in June 2010 with the conclusion that for the time being surrogacy should not be permitted in Iceland.
- Proposal for a parliamentary resolution in November 2010, put forward by 18 MPs. Content: A Committee should be established to write a bill to allow surrogacy for altruistic purposes. Strict rules should be put down for the arrangement and the surrogate and the expected parents should make a binding agreement. The parliament session ended before the discussion about the resolution was finished.
- Proposal for a parliamentary resolution in October 2011 put forward by 23 MPs. Content: A Committee should be established to write a bill to allow surrogacy for altruistic purposes. Emphasis should be put on guaranteeing first, the interests and rights of the child, second, the rights, self-determination and well-being of the surrogate and her family, and third, successful participation of the intended parents. Approved on 18 January 2012.
- In September 2012 the Working Group on Surrogacy was established and is expected to deliver a bill to the Health Minister no later than in January 2015.
- Preliminary consultation process during autumn 2013.
- In January 2014 the Minister of Health presented an interim report to the Althingi on the status of the work.
- The Working Group has invited relevant specialist to its meetings, among others Karen Busby, professor at University of Manitoba.
- The Working group presented the bill to the Minister in February 2015.
- The bill now awaits to be discussed in Althingi.
Main elements of the proposed Icelandic legislation on Altruistic Surrogacy
- New definition of the surrogacy term : Surrogacy is when an embryo with gametes of at least one of the intended parents is, after an IVF treatment, planted in the uterus of the surrogate, which has for altruistic purposes agreed to carry a child for certain intended parents, according to a licence issued by the Committee on Surrogacy, and intends to hand the child to the intended parents after its delivery and the intended parents have committed themselves to apply for the transfer of parental status according the Act in Respect of Children.
- A special Committee on Surrogacy will be established. Its task will be to issue licences for surrogacy and to ensure that all parties will have professional counselling given by experts.
- Interests of the child are emphasised. Surrogate licence cannot be issued unless the child to be conceived by the procedure may be deemed to be ensured good conditions in which to grow up, taken into consideration the mental and physical health of the surrogate, her spouse and the intended parents, their social circumstances and their financial standing.
- Surrogate conditions:
- Consent (and her spouse, if she has one)
- Legally domiciled and resided continuously and lawfully in Iceland for the preceding five years and has permission for permanent residency.
- Of the age 25-39.
- In good health, mentally and physically
- Should have had a least one child and that the pregnancy and birth was normal. Her child should be older than two years old.
- The surrogate and her spouse are not closely related (sister, brother, mother) to the intended parent who supplies the gamete.
- Intended parents should be married or cohabiting, having lived together for at least 3 years. Allowed for heterosexual and homosexual couples which fulfil these conditions. In particular circumstances single men or women can get licence for surrogacy if there is no doubt that the interest of the child will be ensured.
- Intended parents conditions:
- Consent and commitment to apply for the transfer of parental status after the birth of the child.
- Legally domiciled and resided continuously and lawfully in Iceland for the preceding five years and have permission for permanent residency.
- Of the age 25-45.
- Do not have children under the age of 2.
- Neither of them can undergo pregnancy and birth of a child on medical grounds or biological reasons excludes pregnancy.
- It will not be permitted to use the surrogate’s ova. It will be obligated to use gametes from at least one intended parents.
- The process will be as follows:
- The intended parents and the surrogate apply together for a surrogacy-licence to the Committee on Surrogacy and deliver relevant documents (general information on the applicants, their health, housing situation, financial situation, the ability to ensure good conditions in which the child is to grow up in, certificate of marital status/certificate of cohabitation and consent for allowing the Committee to access information from criminal records and Child Protection Committee).
- The Committee on Surrogacy will get the opinion of a healthcare facility which has a licence from the Minister to perform artificial fertilisation (currently one clinic in Iceland).
- Applicants receive information and counselling on the treatment and the medical, legal, ethical, social and other implications which surrogacy could entail.
- After receiving counselling and before the surrogacy-license is issued the applicants will agree upon mutual declaration of understanding on the communication during pregnancy, the attendance of the intended parents at the delivery, the arrangement of giving the child to the intended parents after the birth, the care of the child before the transfer of parental status is done and other matters.
- The evaluation of the Committee on Surrogacy. Surrogacy-licences granted or refused. The refusal can be appealed to the Ministry of Welfare (the Minister of Health).
- IVF treatment is performed at a relevant healthcare facility. The Surrogate carries the child and gives birth. The surrogate is considered as the mother of the child according the Act in Respect of Children and her spouse is considered to be the father of the child.
- If agreed upon in the mutual declaration the child will be in the care of the intended parents after birth. The surrogate and her spouse have full custody of the child until the transfer of parental status, unless other arrangement has been made according the Act in Respect of Children.
- Transfer of Parental Status takes place at the District Commissioner (sýslumaður) two months after the birth of the child according to amendments to the Act in Respect of Children thereof. Upon Transfer of Parental Status the child acquires the legal status in regard to the intended parents and their relatives as if he or she was the child of the intended parents. As of the same time the pre-existing relationship between the child and the surrogate and her spouse and other relatives is terminated.
- The draft proposal contains amendments to the Act in Respect of Children to handle the different circumstances that could come up, for example death or divorce of the intended parents or the surrogate and her spouse. Problematic circumstances and situations where one of the parties involved refuses to give consent will have to be taken to court according to a new chapter in the Act in Respect of Children.
- The intended parents have to apply together for the transfer of parental status. If one of the intended parents does not apply for the transfer of parental status the other intended parent can take the matter to court. If both of the intended parents do not apply for the transfer of parental status the parents (i.e. surrogate and her spouse) can take the matter to court.
- If one of the intended parents dies before the transfer of parental status, a special guardian will be appointed to the child to apply for the transfer together with the surviving intended parent. If both of the intended parents die the parents (i.e. surrogate and her spouse) can apply for a transfer of parental status. In these cases a special guardian will be appointed for the child to apply together with the parents for the transfer of parental status and to look after the child’s interests.
- The parents’ consent, i.e. the surrogate and her spouse, is of essence and the District Commissioner (sýslumaður) cannot transfer the child’s parental status without the parents’ consent. The consent is not valid unless it is confirmed two months after the birth of the child. If one parent cannot give consent (died or missing) it is enough for the other parent to give its consent. If both parents are deceased or missing the consent of the special guardian of the child is needed along with the consent of the person who has the custody of the child (normally the Child Protection Committee).
- Transfer of parental status is valid from the approval of the District Commissioner with legal implications from the child’s birth. The District Commission sends Registers Iceland (handles the public registry) information about the child’s transfer of parental status.
- If parents or special guardian of the child refuse to give consent for the transfer of parental status, or the District Commissioner is of the opinion that the transfer is contrary to the child’s interest, the matter has to be taken to court.
- The intended parents are obligated to inform their child it was born with the help of a surrogate before it is six years old. When a child has reached 16 it can ask for the information on the surrogacy arrangement, among other things where the gametes came from and the name of the gametes donor.
- Commercial surrogacy will be prohibited. Nevertheless, intended parents are allowed to reimburse the surrogate for expenses which are directly linked to the IVF treatment, pregnancy or the birth of the child. These expenses are for example health services (patients cost), medication (patient cost), travel expenses and maternity clothes.
- The legislative proposal suggests prohibition of advertisements on surrogacy of any kind. Intermediation on surrogacy will also be prohibited.
- It will be prohibited to seek or exploit surrogacy in other states which does not fulfil the conditions of the legislation. Since the bill allows surrogacy for altruistic purposes it is clear that foreign judgements and decisions on transfer of parental status after surrogacy in altruistic circumstances does not contradict ordre public and should therefore be recognised in Iceland.
- It is suggested that the Minister will evaluate the legislation and how it has been executed and put a report before Althingi no later than in the Spring of 2021. If the report suggests the Act should be revised then it should be done.
- The proposal for a legislation includes amendments to other acts (most of them being consequence amendments):
- Act on Artificial Fertilisation. Donor anonymity prohibited.
- Act in Respect of Children.
- Act on Maternity and Paternity Leave. The surrogate will get 2 months maternity leave and the intended parents will get normal leave (3 months for the mother + 3 months for the father + 3 months joint leave).
- Act on Public Registry.
- Personal Names Act.
- Inheritance Act.
- Icelandic Citizenship Act.
Ireland -
Legal regulation
1. Is surrogacy regulated by a specific law in your country? No. The Health (Assisted Human Reproduction) Bill 2022 (the AHR Bill) was introduced to, and passed Second Stage in, the Dáil (lower House of the Irish Parliament) in March 2022. The focus of this Bill is on the regulation, for the first time in this country, of a wide range of assisted human reproduction (AHR) practices undertaken within the jurisdiction. The Bill as initiated provided for domestic altruistic surrogacy but did not contain provisions to regulate surrogacy arrangements undertaken in other jurisdictions. In March 2024 the Bill passed Committee Stage (Third Stage) in the Dáil. The AHR Bill, as amended at Committee Stage, includes new provisions in respect of the regulation of international surrogacy agreements and the recognition of certain past surrogacy arrangements.
2. Is surrogacy regulated in another way? (please specify) No, but in February 2012, the Department of Justice and Equality issued a guidance document to parents seeking travel documents for children born outside the State as a result of surrogacy arrangements entitled: Citizenship, Parentage, Guardianship and Travel Document Issues in Relation to Children Born as a Result of Surrogacy Arrangements Entered Into Outside the State. A pre-condition of granting emergency travel documents is that the genetic father (intending father) makes an application for a declaration of parentage and guardianship for the child within 10 working days of the arrival of the child into the State.
3. Has surrogacy been the subject of jurisprudence/court cases in your country?
MR and Anor – v- An tArd Chlaraitheoir & Ors [2014]
This case concerned an arrangement whereby a woman agreed to act as a surrogate for her sister and brother-in-law (the commissioning couple). The commissioning couple provided the genetic material (egg and sperm), which ultimately resulted in the birth of twins. The commissioning couple sought to have the birth register altered so that the commissioning couple were both registered as the legal parents. The Registrar refused to do so, on the principle that under Irish law the woman who has given birth to a child is always regarded as the legal mother. That refusal was challenged in the High Court.
In his judgment of 5th March 2013, Judge Abbott found in favour of the commissioning couple. He held that the genetic mother, and not the birth mother, was the mother, and that the person with the genetic/blood link was entitled to be registered as the parent on the birth certificate.
In February 2014, the State appealed Judge Abbott’s decision on the grounds that: it could create uncertainty regarding the parentage and parental rights of children born as a result of egg donation; demean the role of birth mother; lead to an opinion that commercial surrogacy is not unlawful; and result in the Registrar requiring genetic proof of maternity for every birth.
In November 2014 the Supreme Court overturned the High Court decision on the basis that the case had raised important, complex and social issues which are best addressed by the Oireachtas rather than the judiciary.
High Court Ruling:
Supreme Court Ruling: http://www.courts.ie/Judgments.nsf/0/E238E39A6E756AB480257D890054DCB6
4. Is there a legal definition of the term “surrogacy”? (please specify) No.
A legal definition of the term in the AHR Bill, as initiated, is as follows:
“‘surrogacy’ means an agreement, between a woman and the intending parents (or, in the case of a single intending parent, that intending parent) under which the woman agrees to attempt to become pregnant, by the use of an egg other than her own, and, if successful, to transfer the parentage of any child born as a result of the pregnancy to the intending parents (or, in the case of a single intending parent, that intending parent)”.
However, this definition is subject to amendment and may not be the version in the finalised AHR legislation by the time it has passed through all stages in both Houses of the Oireachtas and has been enacted.
Iceland -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes. Adoption procedures
15. Is the existence of a genetic link required for establishing paternity/maternity? No
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father No
17. Are foreign birth certificates in surrogacy cases registered in your country No
Ireland -
Specific criteria
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s))
It is proposed that access to surrogacy will be made available on the basis of medical need.
b. other criteria (please specify)
The proposed legislation sets out additional criteria which must be met by the intending parents in order for the surrogacy to be approved by the Regulatory Authority, the establishment of which the draft legislation also provides for. Under the draft legislation, for example, each intending parent must be 21 years of age or over and at least one intending parent in each surrogacy must be habitually resident in Ireland.
Iceland -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother Yes
b. intended parent(s)
c. gamete donor
d. facilitator
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) Yes
Iceland -
Services
9. Is it lawful to advertise surrogacy services? N/A
10. Is it lawful to remunerate a facilitator/surrogacy agency No
Portugal -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy? The intended parent(s) are recognised as the legal parent(s) of a child born following surrogacy (Article 8, paragraph 7 of Law No. 32/2006). An amendment to the Law establishing the terms under which consent might be revoked by the surrogate mother up to 20 days after the child was born, thus making the surrogate the legal parent, but with no genetic ties, was rejected in 2019 by the Constitutional Court before the Bill was enacted.
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? No
15. Is the existence of a genetic link required for establishing paternity/maternity? Yes, at least one of the intended parents (Article 8, paragraph 3 of Law No. 32/2006).
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? Besides the intended parent who has consented to the use of the technique in question, other parties may be mentioned in the birth certificate (Article 20), namely the person to whom she is married or linked by registered partnership. The respective parenthood shall be established at the time of registration.
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father No
17. Are foreign birth certificates in surrogacy cases registered in your country Competent authorities are not aware of any requests at this juncture.