9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
1. Is surrogacy regulated by a specific law in your country? Yes
Article 16-7 of the civil code establishes the principle that agreements on surrogate procreation or pregnancy are null and void. This is a public order provision (article 16-9 du code civil).
Article 227-12 of the criminal code prescribes a penalty of one year's imprisonment and a fine of € 15,000 for acting as an intermediary between a person or a couple wishing to receive a child and a woman prepared to bear this child for the purpose of giving it to them. When the acts have been committed repeatedly or for commercial gain the penalties are doubled.
2. Is surrogacy regulated in another way? (please specify) No
3. Has surrogacy been the subject of jurisprudence/court cases in your country?
Pursuant to the former case law of the Court of Cassation of 13 September 2013, a child born under a surrogate pregnancy agreement could not enjoy legal recognition in France of the filiation in respect of its intended parents, even if they had been cited as the child's parents on a foreign birth certificate legally established abroad (1st Civil Chamber, 13 September 2013, Nos. 12-30.138 and 12-18.315).
By two judgments delivered on 3 July 2015 (1st Civil Chamber, 3 July 2015, No. 14-21.32; JurisData No. 2015-01587), the Court of Cassation ruled that the child's paternal filiation, where it corresponds to the biological reality, should be entered in the French civil status register, thereby drawing the legal conclusions of the Mennesson v. France and Labassee v. France judgments handed down by the European Court of Human Rights on 26 June 2014, which found against France on this issue.
These two judgments did not call into question the principle of the absolute prohibition of surrogacy in France, but ensure that the right to respect for private and family life is upheld under the terms of Article 8 of the European Convention on Human Rights and Fundamental Freedoms.
The French courts have therefore gradually developed case law intended to offer legal solutions to the situations of these children. The European Court of Human Rights recently validated this case law with two decisions of December 12, 2019 and July 16, 2020.
In its decision of July 16, 2020 (D. v. France), the European Court of Human Rights ruled in particular that the refusal to transcribe the birth certificate of a child born abroad from a surrogacy does not infringe the right to respect for the private and family life of the child in that the adoption procedure makes it possible to recognize a bond of filiation between the child and his intended parent.
However, despite the compliance of the French system with the European Convention, the Court of Cassation, by two judgments of December 18, 2019, modified its case law, by modifying its interpretation of Article 47 of the Civil Code on the probative value of acts of the foreign civil status. It is now considered that the assessment of the conformity with the "reality" of a foreign civil status document is assessed with regard to the criteria of foreign national law and not those of French law. It thus ordered the total transcription of foreign civil status documents drawn up following a surrogacy agreement, even with regard to the intended mother who has not been given birth or the second father.
This reversal of case law has forced the Parliament to return to the case law of the Court of Cassation before its reversal of last December, and therefore, to regulate the recognition of the filiation of children born at the end of a surrogacy agreement carried out abroad. Article 7 of the law n°2021-1017 of 2 August 2021 on bioethics has returned to the state of the law before the reversal of the case law of the Court of Cassation of 18 December 2019 by allowing the transcription of the foreign birth certificate with regard to the father indicated in the act, while prohibiting the transcription with regard to the woman who has not given birth or with regard to a second father, except adoption.
4. Is there a legal definition of the term “surrogacy”? (please specify) Article 16-7 of the civil code, which prohibits surrogate pregnancies, refers to: “any agreement on surrogate procreation or pregnancy”. There is otherwise no definition of surrogacy as such.
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned.
Excerpts from the unofficial translation of the Finnish Criminal Code http://www.finlex.fi/en/laki/kaannokset/1889/en18890039.pdf
Chapter 25 – Offences against personal liberty
Section 3(b) – Unlawful obtaining of consent to adoption (28/2012)
(1) A person who by (1) promising or providing compensation or (2) misleading or by utilization of an error gets another to give the consent referred to in section 10, subsection 1, section 11, subsection 1 or section 13, subsection 3 of the Adoption Act to adoption of a child under the age of eighteen, shall be sentenced for unlawful obtaining of consent to adoption to a fine or to imprisonment for at most two years.
(2) An attempt is punishable.
Section 3(c) – Unlawful arrangement of adoption (28/2012)
(1) If a person other than the one with care and custody of the child or a person other than the provider of adoption advice referred to in section 22 of the Adoption Act or the service provider referred to in section 32 of the Adoption Act places a child under the age of eighteen years with the intent of adoption in a private home to be raised or in another manner arranges for the possibility that someone else adopts the child, he or she shall be sentenced for unlawful arrangement of adoption to a fine or to imprisonment for at most one year.
(2) Also a person who publicly or otherwise among the public circulates an offer to place a child for adoption or takes a child in his or her care with intent of adoption shall also be sentenced for unlawful arrangement of adoption.
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
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
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 Yes
c. compensation for loss of income No
d. other compensation including non-pecuniary N/A
e. remuneration or comparable advantage No
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother -
b. oocyte donor -
c. sperm donor -
d. intended mother Yes
e. intended father Yes
In case the child is born after medically assisted reproduction of a surrogate mother, under the conditions of Civil Code article 1458, it is presumed that the mother is the one who has obtained the Court permission. Declaration to the Birth Registries is done accordingly (Law 344/1976) .
This presumption can be reversed by a legal action contesting the maternity, within six months from the birth of the child. This legal action can be initiated either by the presumed mother or by the surrogate mother, provided that evidence is provided that the child is biologically linked to the latter. The contesting must be proceeded with by the woman entitled to do so personally or by her specially authorized attorney or by the Court permission by her lawful representative. Following the irrevocable Court decision in favour of the legal action, the mother of the child is considered to be the surrogate mother with retroactive effect as from the fact of its birth.
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? No, parentage transfer is necessary, as surrogacy is legal.
15. Is the existence of a genetic link required for establishing paternity/maternity? No. See question no. 13.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother -
b. oocyte donor -
c. sperm donor -
d. intended mother Yes
e. intended father Yes
17. Are foreign birth certificates in surrogacy cases registered in your country. Yes. The Ministry of Interior and Administrative Reconstruction provides instructions for registering the birth of a child born abroad to the relevant Greek Authority. For this, there must exist affiliation with the Greek State of at least one of the parents of the child. When a child is born abroad, either a birth certificate from a Greek Consulate is required or a birth certificate from the relevant authority of the foreign state. If the foreign birth certificate is issued according to a foreign court order, an official translation of this court order in Greek is required as well as a decision of the Greek court accepting the foreign court decision. These are general provisions, not pertaining specifically to surrogacy. In some countries where surrogacy tourism is thriving, it is required that before the beginning of the procedure, the intended parents provide documentation that the state to which they will turn back permits surrogacy and that it can accept the child as the biological child of the intended parents. Nevertheless, as far as Greek citizens are concerned, (e.g. the commissioning parents or one of them) Greek Embassies abroad cannot issue any documents which are not in line with Greek legislation, since Greece requires a court order for a legal surrogate procedure to begin and since it accepts only partial surrogacy. It is likely, however, that as surrogacy is acknowledged by Greek legislation under certain forms and conditions, any such issue will be settled more easily than in countries where surrogate motherhood is absolutely prohibited.
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother NA
b. intended parent(s) NA
c. gamete donor NA
d. facilitator NA
12. Subject to the applicable law, are you aware of the following unlawful practices in your country? The National Bioethics Commission (www.bioethics.gr) published in 2013 a Report on the "Control in the field of Medically Assisted Reproduction" after having received complaints about illegal practices in Greece including among other things cases of exploitation of non-resident women (trafficking), in combination with commercialization of oocytes, services of surrogate motherhood and use of illegal drugs.
a. remuneration of the surrogate Yes
b. remuneration of the gamete donor Yes
c. advertising for surrogacy services Yes
d. remuneration of facilitators Yes
e. any other unlawful practices (please specify) Yes
1. Is surrogacy regulated by a specific law in your country? No
2. Is surrogacy regulated in another way? (please specify) Yes. In the Act on Health § 166 sets a restrictive list of special procedures for reproduction. Surrogacy fails to be contained in the list. Consequently, surrogacy cannot be performed in Hungary.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. Historically, surrogacy was originally (1997) an item in this list, and the list was exemplary. An amendment of the Act was adopted in 1999, skipping surrogacy from the list, and making the restrictive list. This amendment was preceded by a broad professional, juristic and ethic discussion.
4. Is there a legal definition of the term “surrogacy”? (please specify). No. Not in force. Surrogacy (under the name of “dajkaterhesség”) used to be defined originally in § 183. (1) of the Health Act
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
5. Is surrogacy prohibited in your country?
a. any form of surrogacy. No Prohibition not specifically expressed but it cannot be performed legally.
b. only specific forms of surrogacy (e.g. commercial) (please specify)
Yes. Any form of commercial utilization of the human body is prohibited
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) N/A
b. other criteria (please specify) N/A
18. Is there:
a. any public discussion about the topic Yes/No
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned.
Surrogacy in the sense of surrogate mothership in the context of medically assisted procreation is not allowed in Türkiye. Medically assisted procreation is limited to artificial insemination such as IVF techniques and the like, and these are practiced in cases of infertility at certified medical centres permitted / authorised and monitored by the State in line with the concerned Regulation.
In Türkiye the main legal document dealing with the assisted procreation is the Regulation on the application of Assisted Reproduction and the health institutions that practice this (Uremeye Yardimci Tedavi Uygulamalari ve Uremeye Yardimci Tedavi Merkezleri Hakkinda Yonetmelik) (The Regulation).
The Regulation ordains the application of the medical techniques of assisted reproduction and embryo transfer in line with the modern medical technologies and sciences. It also regulates specifications of the practice, duties and responsibilities, physical conditions, terms of certification of the concerned health institutions (whether in the State or at private sector), requirements of the personnel who work there, and the like.
Article 1 states that assisted reproduction and embryo transfer can be applied only to married couples who are not able to procreate in natural way.
Article 4/f states that only expectant mother’s ovum and her husband’s sperm can be fertilized by diverse medical methods and transferred and placed into mother-to-be’s womb through proper medical techniques.
It is added to the Regulation that only married but infertile couples can benefit from assisted procreation services using only their own fertilized oocytes, sperms and zygotes. Couples are also liable to document their infertility meaning that they are unable to reproduce in natural way.
Upon an amendment on 8.7.2005, Article 17 prohibits the use of ova, sperms and embryos harvested from married couples onto other persons or candidates of parents. This Article, prohibits also, the use of ova, sperms and embryos harvested from other persons or candidates for the applicant parents. This Article bans the commercialization of human reproduction cells, as well.
In conclusion, as understood from the Regulation, married couples are strictly forbidden to accept (egg and/or sperm) donation from other persons or to donate their own embryos to other persons, or transfer them to surrogate mother(s). Surrogacy is evaluated as against individual rights and freedoms, common morality and common law (1)
The underlying reasoning of this argumentation lies in the idea of parenthood and familial link stated in the Turkish Civil Code (2). However, the relevant parts of the Civil Code dealing with parenthood or familial link do not ordain assisted procreation and embryo transfer, neither their relevant outcomes are presumed. The Turkish Civil Code (2001) acknowledges the Roman Law principle “Mater semper carta es’’, which has the power of praesumptio iuris et de iure, meaning that no counter-evidence can be made against this principle (literally: Presumed there is no counter evidence and by the law). Its meaning is that the mother of the child is always known. Article 282/1 states that the familial parental link between the mother and the child is set by birth that means legal mother is biological mother. The underlying reason of this is the presumption that there is a biological bond (umbilical cord unifying them) between the bearing and delivering mother with the child who is born (3).
Nevertheless, there seems to be some shortages to be amended to cover the needs of persons regarding emerging new medical technologies and genetics.
Sources
(1) The Regulation http://www.mevzuat.gov.tr/Metin.Aspx?MevzuatKod=7.5.20085&MevzuatIliski=0&sourceXmlSearch=%C3%BCreme (Accessed on 29.08.2016)
(2) The Turkish Civil Code (recently amended in 2013): http://www.mevzuat.gov.tr/MevzuatMetin/1.5.4721-20130711.pdf (Accessed on 29.08.2016)
(3) Sukran Sipka, “Tasiyici annelik ve getirdigi hukuki sorunlar” (Surrogate mor-therhood and the problems brought along with), Cumhuriyet Dergi, 25 February 2007http://www.turkhukuksitesi.com/makale_537.htm (Accessed on 29.08.2016)
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Surrogacy has not been regulated by law in Türkiye, in other words, there is no law or regulation on surrogacy and surrogate motherhood in the sense of assisted reproduction. But the conditions of having a child through assisted procreation have been ordained by law and the allied Regulation mentioned above which do not include surrogacy nor surrogate motherhood.
In Türkiye, embryo is created for procreation, meaning that, it is produced in vitro for fertilization of the married couples who cannot have child in natural way. This procedure has been legalized and it can be done only by the ova and sperms (oocytes and zygots, gametes) of the married couples themselves; they cannot be taken from third parties.
Additionally, embryo is not created by research purposes. The surplus embryos created during the process of assisted reproduction are not allowed to be used for research purposes. The legal regulations concerning stem cell and regenerative medicine are at a preliminary stage and this area needs to be improved and enhanced.
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) No
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
5. Is surrogacy prohibited in your country? All forms of surrogacy have been prohibited in Türkiye.
a. any form of surrogacy Yes
b. only specific forms of surrogacy (e.g. commercial) (please specify) No
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) -
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
8. Can the surrogate also be the oocyte donor? No
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes. Mother is the women who gave birth to the child.
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father Yes
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes. As in any other constellation, however, adoption may take place between the child and the intended parents without any special provision for surrogacy cases.
15. Is the existence of a genetic link required for establishing paternity/maternity? Maternity: no. Paternity: no, the father is the mother’s husband, the man who acknowledged paternity or the male partner of the woman giving birth following ART, always under the condition that he formally consented to the treatment.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother The mother is the woman who gave birth to the child.
b. oocyte donor No
c. sperm donor No
d. intended mother N/A
e. intended father Yes
17. Are foreign birth certificates in surrogacy cases registered in your country Yes. If there is a genetic link between the parents and the child, the foreign birth certificate is recognized in Austria because of the best interests of the child.
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) Yes
b. other criteria (please specify) Yes
Fertilization centers which agree to practice medically assisted procreation with a surrogate mother currently pose their own terms. Eg: one center limits acceptance to medical indications (e.g. patient with significant heart defect) and to surrogacy without oocyte donation or sperm, which excludes homosexual couples. But another Belgian fertilization center accepts homosexual couples.
Thus the criteria may vary from one center to another (e.g. procedure for screening of the surrogate mother; limited access for Belgian applicants).