1. Is surrogacy regulated by a specific law in your country? No
2. Is surrogacy regulated in another way? (please specify) No
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Not for the moment
4. Is there a legal definition of the term “surrogacy”? (please specify) No
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
13. Who is recognised as the legal parent(s) of a child born following surrogacy? N/A
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? No
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 No
13. Who is recognised as the legal parent(s) of a child born following surrogacy? N/A
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? No
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 No
8. Can the surrogate also be the oocyte donor? N/A
8. Can the surrogate also be the oocyte donor? No
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.
Pursuant to section 1 subsection (1), no. 7, of the Act on the Protection of Embryos [Embryonenschutzgesetz, ESchG], a person who undertakes to perform an artificial insemination on a woman who is prepared to give up her child permanently after birth to third parties (surrogate mother) or to transfer a human embryo to her is liable to imprisonment of up to three years or a fine. In such case neither the surrogate mother nor the person who wishes to permanently take care of the child is liable to punishment.
Pursuant to section 13c of the Adoption Placement Act [Adoptionsvermittlungsgesetz, AdVermiG], the procurement of surrogate mothers is prohibited by law in Germany.
2. Is surrogacy regulated in another way? (please specify) NA
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes
Domestic surrogacy has not been subject of (civil law) jurisprudence due to strict prohibitions.
So far the courts have delivered only a few judgments dealing with the recognition of foreign judicial decisions issued following an international surrogacy arrangement.
In its leading decision of 10 December 2014, the Federal Court of Justice recognised a judgment from California establishing paternity of two German male nationals on the basis of a surrogacy agreement. The surrogate mother was not married, an anonymous egg donor was used and the child was, therefore, genetically related to only one of the intended fathers.
The Federal Court of Justice held that the recognition of a foreign judgment establishing a legal parent-child relationship between the child and the intended parents does not lead to a result that is obviously incompatible with significant principles of German law (ordre public) if (at least) one of the intended parents is genetically related to the child and the surrogacy mother is not. Whether the intended parents are of the same sex and live in a registered life partnership (or are married) or whether they are of a different sex and are married is not decisive. What is crucial for the possibility of recognition, according to the Federal Court of Justice, is whether or not the child was transferred by the surrogate mother into the care of the intended parents voluntarily – although this was not problematic in this particular case.
According to the Federal Court of Justice, binding the child to the legal maternity of the surrogate mother, as would follow from Section 1591 of the Civil Code (Bürgerliches Gesetzbuch – BGB), is not in the child’s best interest, because the surrogate mother does not want to take care of the child and because the foreign state will not acknowledge the legal maternity of the surrogate mother due to the foreign judgment.
The jurisprudence established by the Federal Court of Justice’s ruling has already been referred to by the Higher Regional Court of Düsseldorf in its decision of 7 April 2015 and several other German courts thereafter. The Federal Court of Justice itself subsequently further reaffirmed and specified its case law in two decisions of 5 September 2018 and 12 January 2022.
For instance, it held that the voluntary nature of the surrogate mother's cooperation is not called into question by the fact that the surrogate mother receives money in return or that there is a social disparity between her and the intended or appointed parents.
Recent first instance court decisions point to an even broader recognition of foreign surrogacy judgments, as the genetic link between one of the intended parents and the child has been declared of lesser relevance than the free and informed decision of the surrogate mother to accept the transfer of parenthood to the intended parents as well as the child’s best interests’ assessment.
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. See answer to question 1.
1. Is surrogacy regulated by a specific law in your country? Yes. The law of Georgia on Health Care (LHC) - Chapter XXIII Family Planning.
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
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) NA
b. other criteria (please specify) NA
9. Is it lawful to advertise surrogacy services? Not regulated by law
10. Is it lawful to remunerate a facilitator/surrogacy agency Not regulated by law
8. Can the surrogate also be the oocyte donor? NA
8. Can the surrogate also be the oocyte donor? NA
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
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
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
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) Not commercial
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
1. Is surrogacy regulated by a specific law in your country? No
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?
a. any form of surrogacy N/A
b. only specific forms of surrogacy (e.g. commercial) (please specify) N/A
In Bosnia and Herzegovina there is no specific legislation related to surrogacy
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
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned.
Any activities of the Council of Europe regarding surrogacy issues should be coordinated with the Hague Conference on Private International Law. Matters of international private and procedural law in this area should be reserved for the Hague Conference in order to avoid duplication of work.
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother No
b. intended parent(s) No
c. gamete donor No
d. facilitator Yes
12. Subject to the applicable law, are you aware of the following unlawful practices in your country? The Federal Government is not aware of any of the unlawful practices referred to in a. to e. in Germany. However, since oocyte transfer is prohibited too, German artificial reproduction clinics cannot engage in any form of surrogacy.
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
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
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 Yes
d. other compensation including non-pecuniary Yes
e. remuneration or comparable advantage No
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency NA
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
Main elements of the proposed Icelandic legislation on Altruistic Surrogacy
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.
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.
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
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
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.
Surrogacy is not allowed in Spain, although it is recognized as an assisted reproductive technology in the Law 14/2006 on Assisted Human Reproduction Technologies (LTRHA) approved in 2006.
This Law declares null and void any contract agreement of surrogate motherhood conducted by a woman who refuses the filiation in favour of the contracting part or of a third party beneficiary, no matter it is with or without remuneration. It also lays down that filiation of children born by surrogate motherhood is determined by birth and that the fatherhood claim of the biological father remains possible.
Although the law in general seems to be very innovative and according to the critics, it is one of the most permissive regulations in the world, in relation to surrogate motherhood it takes a conservative character.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. It is defined in the LTRHA as surrogate gestation: gestation, with or without price, in charge of a woman who refuses motherhood filiation in favour of the contracting part or of a third party beneficiary.
18. Is there:
a. any public discussion about the topic NA
b. planning of new regulation at national level NA
19. Please specify any additional relevant aspects which were not mentioned. NA
1. Is surrogacy regulated by a specific law in your country? Surrogacy is prohibited in Switzerland (see Art. 119 para 2 lit d Swiss Constitution; Art. 4 of the Swiss Reproductive Medicine Act, RMA)
2. Is surrogacy regulated in another way? (please specify) No.
The case law of the Swiss Federal Supreme Court governs the conditions for recognition of parent-child relationships resulting from surrogate motherhood.
Article 119.2 of the Swiss Constitution also contains relevant information: RS 101 - Federal Constitution of the Swiss Confederation... | Fedlex (admin.ch)
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. A number of cases concern the legal status and adoption of children born through surrogacy abroad (in the United States, for example).
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. Article 2, paragraph k, of the Federal Law on Medically Assisted Procreation reads as follows: "surrogate mother: a woman who agrees to carry a child conceived by means of a medically assisted procreation method and to hand it over permanently to a third party after the birth;".
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
5. Is surrogacy prohibited in your country? It is not subject of any law or reglementation. It is not regulated.
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.
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.
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).
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.
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.
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
9. Is it lawful to advertise surrogacy services? N/A
10. Is it lawful to remunerate a facilitator/surrogacy agency No
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.
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)
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
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)
8. Can the surrogate also be the oocyte donor? NA
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. It is considered illegal in Sweden because by Swedish law (lagen (2006:351) om genetisk integritet) a woman may only be inseminated or implanted if it is done with either her egg cells or her partner’s semen. In the case of single women it needs to be her own egg cells. A breach against this regulation for economical gain is sanctioned.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? No. Not surrogacy as such, but the consequences for a child conceived by surrogacy are not accommodated to the situation, and therefore there are court rulings in adoption cases/ custodianship of children. As late as March 18th 2016 the Court of Appeal admitted a genetic mother to adopt twins conceived by surrogacy abroad (Svea Hovrätt, ÖÄ 945-16). In January 20th 2015 The Court of Appeal concluded that an American court decision declaring two men as the legal parents of a child born after a surrogacy arrangement in the United States should be accepted in Sweden. One of the men was the genetic father of the child (Svea Hovrätt Ö9822-14), (The Court of Appeal gave a similar ruling on 7th October 2014 in Svea Hovrätt Ö6952-14.) In an early case in the Supreme Court on 7th July 2006 the genetic mother was denied adoption because the genetic father and the surrogate mother (who was the sister of the genetic father) withdrew their consents after the couple had separated.
4. Is there a legal definition of the term “surrogacy”? (please specify) No
1. Is surrogacy regulated by a specific law in your country? No
2. Is surrogacy regulated in another way? (please specify) Yes
a. family code art 2 and 123
b. Ministry of Health of Ukraine, orders N 52/5 jan18x2000
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. Very rare, when conflict during the surrogacy process appeared.
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. Order N787 from 9/09/2013 on medically assisted procreation and reproductive technologies.