Surrogacy - Search
Iceland - 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
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
Ireland - Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes, birth mother is the legal mother - see note on the MR and Anor – v- An tArd Chlaraitheoir & Ors [2014] case
If the surrogate mother is married, then under the Status of Children Act 1987, the surrogate mother's husband is presumed by law to be the father of the child. The husband will also, along with the surrogate mother, be the joint guardian of the child.
If the commissioning father is the genetic father of the child, it is possible to overcome the presumption of paternity in favour of the surrogate mother's husband, so as to allow the commissioning father to be recognised as the legal parent of the child. The commissioning father will need to provide evidence of paternity in support of this application.
If the surrogate mother is not married, and the commissioning father is the genetic father of the child, then the Irish authorities may recognise his paternity of the child on receipt of reliable DNA evidence.
As provided for under the Children and Family Relationships Act 2015, gamete/embryo donors are not regarded to be the parent(s) of donor-conceived children.
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)?
See previous note. In addition, it is proposed that the legislation on assisted human reproduction will establish a court-based mechanism for transfer of parentage from the surrogate (and her husband) to the intending parents. At least one of the intending parents will have to be genetically related to the child.
15. Is the existence of a genetic link required for establishing paternity/maternity? As previously stated, the birth mother is automatically regarded as the legal mother under the Irish Constitution. See notes under Q 13 re paternity and Q 14 re transfer of parentage in cases of surrogacy.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother Yes, birth mother is always the legal mother
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father Yes, so long as he is the genetic father
The proposed legislation will establish a national surrogacy register where the contact details of any person involved in a surrogacy, e.g. sperm or oocyte donor, intending parent and surrogate, will be recorded. Once a person born to a surrogate reaches the age of 18, he or she may access the full information contained in the national surrogacy register, unless there are exceptional circumstances.
17. Are foreign birth certificates in surrogacy cases registered in your country No
Italy - Legal regulation
1. Is surrogacy regulated by a specific law in your country? No specific law, but specific provisions in more general laws
Article 12 (general prohibitions and penalties), section 6 of Law n°40/2004 on assisted reproduction techniques bans surrogacy (“Whoever, in any form, produces, arranges or advertises the sale of gametes or embryos or surrogate motherhood is punished with imprisonment from three months to two years and a fine ranging from 600,000 to one million euros”).
Pursuant to the Italian Constitution, the combined provisions of Articles 2, 30 and 31 preclude its legitimacy, thereby stating the irreplaceability of both personal and economic duties related to parental responsibility incumbent upon genetic parents, alongside the child’s right to be raised by the latter and to be entitled to a substitute family only when the parents’ incapacity is objectively certified.
In addition, Article 5 of the Italian Civil Code prohibits any actions on one’s own body when causing a permanent damage to physical integrity or when violating Law, public order or decency.
2. Is surrogacy regulated in another way? (please specify) No
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes, judgments by Italy’s Supreme Court (n. 24001/2014) and the Constitutional Court (n.162/2014) confirmed the prohibition of Law no.40/2004. Particularly, in judgment n° 162/2004, the Court ruled that “the technique under examination must be strictly restricted to the donation of gametes and kept separate from other different methods, such as “surrogate pregnancies”, which are expressly prohibited under Article 12(6) of Law no. 40 of 2004, the prohibition of which has not been challenged and is not affected in any way and at any point by this ruling, and will hence continue to be valid and effective”.
4. Is there a legal definition of the term “surrogacy”? (please specify) No
Ireland - Financial aspects
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive: It is proposed that the reimbursement of reasonable, receptable expenses will be permitted which might include: any pre-natal or post-natal medical expenses associated with the pregnancy or birth; expenses associated with the surrogate mother receiving counselling, independent legal advice; maternity clothing, paid housework or childcare undertaken by persons other than the surrogate mother; the expense of reimbursing the surrogate mother for any loss of income but only for a) a period of not more than 6 months during the which the birth happened or was expected to happen; b) any other period during the pregnancy or thereafter, not exceeding 12 months in total, when the surrogate mother was unable to work on medical grounds related to the pregnancy or birth.
a. refund of medical expenses
b. refund of other expenses
c. compensation for loss of income
d. other compensation including non-pecuniary
e. remuneration or comparable advantage
- refund of medical expenses
- refund of other expenses
- compensation for loss of income
- other compensation including non-pecuniary
- remuneration or comparable advantage
Italy - Current debate and specific situations
18. Is there:
a. any public discussion about the topic There is an important public debate on this topic, with a public opinion predominantly opposed to surrogacy
b. planning of new regulation at national level The bill approved by the Chamber of Deputies and forwarded to the Senate (No. 824), which incorporates proposals presented in the previous legislature (Nos. 2599 and 306, Chamber of Deputies), extends the application of Italian criminal law to the crime of surrogacy committed by Italian citizens abroad.
19. Please specify any additional relevant aspects which were not mentioned.
Italy brought the Paradiso and Campanelli v. Italy case in front of the ECHR (judgment on 27 January 2015). A case of a child born in Russia following a surrogacy arrangement entered into by a couple who had no biological relationship with the child, contrary to allegations made by the applicants. The Italian State declared the child legally available for adoption and placed him under guardianship. The European Court of Human Rights condemned Italy. However, the Italian government appealed this decision and requested that the case be referred to the Grand Chamber of the ECHR. Grand Chamber hearing with the Italian government was held on 9 December 2015. With the judgment on 24 January 2017, the ECHR established: “ The Court accepts that the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them in the present case. It follows that there has been no violation of Article 8 of the Convention”. The ECHR recognized that the measures in question were deemed proportionate to the protection of the overriding interest of the child and essential to avoid recognizing as legitimate a situation created in violation of rules important to the national system.
Italy - 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) Yes
c. gamete donor The sale of gamete is banned, not the donation
d. facilitator Yes
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate
b. remuneration of the gamete donor
c. advertising for surrogacy services Yes
d. remuneration of facilitators
e. any other unlawful practices (please specify)
Italy - 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
Lithuania - Specific criteria
6. Is access to surrogacy subject to specific criteria? See answer to question 2.
a. medical criteria (e.g. infertility of the intended parent(s))
b. other criteria (please specify)
Italy - Oocyte donation
8. Can the surrogate also be the oocyte donor? NA
Lithuania - Oocyte donation
8. Can the surrogate also be the oocyte donor? NA
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
Montenegro - Oocyte donation
8. Can the surrogate also be the oocyte donor? Yes. Oocyte donation is regulated by the same law as surrogacy (Law on Infertility Treatment with Assisted Reproductive Technologies). Instead of surrogacy which is prohibited, oocyte donation is allowed, and the criteria are specified.