Surrogacy - Search
Andorra -
Legal regulation
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
Austria -
Services
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
Andorra -
Specific criteria
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
Andorra -
Legal aspects
5. Is surrogacy prohibited in your country? It is not subject of any law or reglementation. It is not regulated.
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
Bosnia and Herzegovina -
Legal regulation
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
Bosnia and Herzegovina -
Legal aspects
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
Bosnia and Herzegovina -
Specific criteria
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
Bosnia and Herzegovina -
Parentage
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
Croatia -
Parentage
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
Bosnia and Herzegovina -
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
Bosnia and Herzegovina -
Oocyte donation
8. Can the surrogate also be the oocyte donor? N/A
Croatia -
Services
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
Cyprus -
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. An amendment to the recent Law is prepared by the Board of Medically Assisted Reproduction which will be presented for approval to the Council of Ministers and the House of Representatives of the Republic of Cyprus in 2016.
Cyprus -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? N/A
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? No. Please note that since the Law is new, there was not enough time to observe any irregularities in the implementation of the law.
Cyprus -
Services
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
Cyprus -
Oocyte donation
8. Can the surrogate also be the oocyte donor? No
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.
Denmark -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes, mother is the woman who gave birth to the child
b. oocyte donor No
c. sperm donor Yes, but if the mother is married, her husband will be considered the father by pater-est. A sperm donor (and intended father) may be able to recognize the paternity instead of the husband.
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)?
Not directly. See also answer to question number five.
If the intended father is also the genetic father (e.g. sperm donor), he will be recognized as legal father of the child unless the surrogate mother is married and there has not been a paternity case, where the husband of the surrogate mother declares that he is not the father of the child.
A spouse or cohabiting partner may apply for a stepchild adoption. However according to Danish regulation, the spouse or partner must have been living with the child for 2½ years before a stepchild adoption may be granted and an adoption decree shall not be issued if any of the parties required to consent to the adoption are to give or receive any kind whatsoever of payments or consideration, including compensation for loss of earnings.
If the intended father is not recognized as a legal father the only option to become legal parent of the child is an adoption, which must be in accordance with the 1993-Hague Convention on Intercountry Adoption, and therefore is difficult.
15. Is the existence of a genetic link required for establishing paternity/maternity? No.
In Denmark maternity is established by mater est, which means that the woman who gives birth to the child is the legal mother.
Paternity can be established in three different ways:
- By presumption (pater est (the husband to a mother is presumed to be the father of a child) or a man and the mother jointly sign a Care and Responsibility Declaration, paternity will be recognized)
- By declaration or judgment when the man is the genetic father.
- When a man has consented to his spouse or partner undergoing assisted fertilization, paternity can be established. This also applies to co-maternity, when a woman has consented to her spouse or partner undergoing assisted fertilization.
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 Yes and no
d. intended mother No
e. intended father Yes and no. If the intended father is also the genetic father, it is possible to recognize the paternity (cf. answer to question 13).
17. Are foreign birth certificates in surrogacy cases registered in your country No. According to Article 30 of the Children Act, a woman bearing a child who is the result of medically assisted procreation shall be considered the mother of the child (mater est). In Denmark a foreign birth certificate that indicates another person than the birth mother, as parent of the child will not be recognized. If the birth certificate also mentions a father, that paternity will be recognized if the man is also the genetic father of the child.
Finland -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother No, unless she is considered guilty of unlawful arrangement of adoption (Chapter 25, Section 3c of the Criminal Code, see excerpt below).
b. intended parent(s) No, unless they have paid or promised to pay remuneration for the gametes or embryos to be used in violation of Section 21 of the Act of Assisted Fertility Treatments, or they are considered guilty of unlawful obtaining of consent to adoption or unlawful arrangement of adoption (Chapter 25, Sections 3b and 3c of the Criminal Code, see excerpts below).
c. gamete donor. No, unless he or she is considered guilty of unlawful obtaining of consent to adoption or unlawful arrangement of adoption (Chapter 25, Sections 3b and 3c of the Criminal Code, see excerpts below
d. facilitator. According to Section 35 of the Act on Assisted Fertility Treatments (1237/2006), a person who intentionally provides assisted fertility treatment although there is reason to presume that the child will be up for adoption, shall be sentenced to a fine for assisted fertility treatment offence. The facilitator is also more likely to be considered to violate the ban on remuneration (Section 35, paragraph 2 of the Act on Assisted Fertility Treatments) and to be considered guilty of unlawful obtaining of consent to adoption and unlawful arrangement of adoption (Chapter 25, Sections 3b and 3c of the Criminal Code).
12. Subject to the applicable law, are you aware of the following unlawful practices in your country? No
a. remuneration of the surrogate
b. remuneration of the gamete donor
c. advertising for surrogacy services
d. remuneration of facilitators
e. any other unlawful practices (please specify)
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.
Germany -
Legal regulation
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.
Georgia -
Legal regulation
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
France -
Specific criteria
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
Georgia -
Services
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
France -
Oocyte donation
8. Can the surrogate also be the oocyte donor? NA
Germany -
Current debate and specific situations
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.
Germany -
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) 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
Germany -
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
Greece -
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 Yes
c. compensation for loss of income Yes
d. other compensation including non-pecuniary Yes
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
Germany -
Services
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency NA
Hungary -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy? Not applicable. According to § 4:115 (1) of the Civil Code (Act V of 2013) the mother of the child is the woman who has delivered the child. According to section (4) thereof, if the child was born in an assisted reproduction event, the oocyte donor cannot legally apply for the mother status.
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)?
Yes. A birth after surrogacy can happen abroad, in a country where it is lawful. Depending on the specification of the legal mother in the original birth certificate, an adoption procedure may follow in Hungary.
According to the Civil Code, the legal mother cannot be forced to agree to the intended adoption, and the legal decision on the adoption can be withdrawn if a commercial motivation of the adoption comes to light.
15. Is the existence of a genetic link required for establishing paternity/maternity? No. In the case of assisted reproduction the genetic link cannot be complained by the parents, according to the Civil Code, § 4:108 a) for the father, and § 4:115 (4) for the mother.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? NA
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
Hungary -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? For A., B. and D. § 175 on prohibited use of human body of the Criminal Code (Act C of 2012) is relevant. In addition, for a. to d., § 213 on violation of family status are also valid.
a. surrogate mother Yes
b. intended parent(s) Yes
c. gamete donor NA
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 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
Hungary -
Services
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
Hungary -
Oocyte donation
8. Can the surrogate also be the oocyte donor? NA
Hungary -
Current debate and specific situations
18. Is there:
a. any public discussion about the topic. It used to be, see no. 3
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned. NA
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.
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
Pays-Bas -
Legal regulation
1. Is surrogacy regulated by a specific law in your country? No. Surrogacy is currently unregulated, apart from a criminal prohibition of (commercial) mediation in surrogacy. Currently, there is a legal framework in preparation regulating parentage following surrogacy in the Netherlands as well as the acceptance of parentage following international surrogacy. This legislative proposal has been sent to parliament for adoption on the 4th of July of 2023.
2. Is surrogacy regulated in another way? (please specify) No. The Dutch civil code has no mention of surrogacy. Accordingly, the regular provisions in the field of parentage, parental responsibility and child protection apply in these cases. After birth, the surrogate mother is the legal mother of the child. The intended parents can only become the legal parents through recognition and adoption upon request at the Dutch court. Surrogacy arrangements can be made but will not be enforceable when it contains arrangements that conflict with Dutch legislation, such as arrangements to transfer the legal parentage.
3. Has surrogacy been the subject of jurisprudence/court cases in your country?
Yes, in specific international surrogacy cases:
In recent years there have been court rulings that allowed for the recognition of foreign denial of maternity (not recognized in Dutch Civil Law, Court The Hague June 27th 2019 and Court Amsterdam February 12th 2020, ECLI:NL:RBAMS:2020:871). And also the recognition of a foreign birth certificate with two intending parents of opposite-sex (Court Amsterdam, August 29, 2023, ECLI:NL:RBDHA:2023:13397) and two fathers on it (Court Amsterdam, February 12th, 2020, ECLI:NL:RBAMS:2020:1628). In all cases the court only recognized the foreign birth-certificates under the condition that there had been due process in the originating country, and information on the origin of the child, under which the genetic relations of the child, were clear. In the case of two fathers on the birth certificate the court also considered that the certificate had already been recognized in another EU country (Spain).
4. Is there a legal definition of the term “surrogacy”? (please specify) No
Norvège -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy? There are no specific provisions in the Children Act or in the Adoption Act with regard to legal parentage for children born by a surrogate mother. The woman who has given birth to the child shall be regarded as the mother. Maternity can only be transferred by means of adoption. Paternity may be established according to the provisions in the Children Act. If paternity is not established pursuant to the pater est rule, a man may acknowledge paternity. Paternity shall be acknowledged in writing either in the notification of birth or by appearing in person before i.a. the National Register, the Norwegian Labour and Welfare Service (NAV), an embassy/consulate, a midwife/doctor at an pregnancy check-up (in Norway). Acknowledgement is valid if the mother has accepted it in writing, or when the acknowledgement is given by the person whom the mother has named as the father. Paternity may also be established/changed by a court order, or changed according to a decision by the authorities. In individual cases, paternity established abroad may be recognized in Norway (strict conditions)
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes. General rules for adoption will apply if the parents of a child wish to transfer parentage.
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?
Not applicable. Only the parents of the child are mentioned in the birth certificate.
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 Only when the child is born on the territory of the State.
Pays-Bas -
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. Commercial forms of surrogacy are explicitly forbidden (Article 8, paragraph 2 of Law No. 32/2006). Gratuitous surrogacy is pendant on a new legislative revision.
Norvège -
Specific criteria
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
Norvège -
Oocyte donation
8. Can the surrogate also be the oocyte donor? NA
Pays-Bas -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? If they violate article 151b and/or c of the penal code, which prohibits (commercial) mediation with the intend of surrogacy and making public the desire to be a surrogate mother or seeking one. The gamete donor is not included in the prohibition. In the bill that has been sent to Parliament is proposed to decriminalize making public the desire to be a surrogate mother or seeking one.
a. surrogate mother Yes
b. intended parent(s) Yes
c. gamete donor Yes
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 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
Pays-Bas -
Services
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
Portugal -
Legal regulation
1. Is surrogacy regulated by a specific law in your country? Yes. In Portugal, access to surrogacy is regulated by Law no. 25/2016, of 22 August, which amended Law no. 32/2006, of 26 July. On 24 April 2018, the Constitutional Court declared to be unconstitutional the conditions under which the surrogate could withdraw her consent, which led to the extinction of any pending surrogate gestation contracts - Judgement no. 225/2018. In July 2019, the Portuguese Parliament approved a new Decree which was again declared unconstitutional on the same account - Judgment no. 465/2019 of the Constitutional Court, a fact that led the President of the Republic to return the Decree to the Portuguese Parliament, without promulgation. The President of the Republic returned the Decree to the Portuguese Parliament, where the debate is ongoing. The revised bill will have to be approved by the Portuguese Parliament and by the President of the Republic, subject to the Constitutional Court rulings. In practical terms, the legal framework regulating surrogacy in Portugal is not currently in force and cannot be applied.
2. Is surrogacy regulated in another way? (please specify) No
3. Has surrogacy been the subject of jurisprudence/court cases in your country? No. As the MAP techniques for the surrogacy cases authorized by the Portuguese National Council for Medically Assisted Procreation following the enactment of both the law and the regulatory decree had yet to be initiated, the effects of the Court rulings extended to all surrogacy contracts. Therefore, all contracts were cancelled and to this date no case has reached the judicial courts.
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. According to Article 8, paragraph 1 of Law No. 32/2006, “Surrogacy is defined as any situation in which a woman is prepared to carry out a pregnancy on behalf of third parties and to hand over the child after giving birth, thus renouncing the powers and duties of motherhood.”
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.
Portugal -
Services
9. Is it lawful to advertise surrogacy services? No. According to Article 39, paragraphs 5 and 6 of Law No. 32/2006, anyone who promotes surrogate, namely by public announcement, outside the cases provided for in paragraphs 2 to 6 of Article 8 stands to be punished by imprisonment for up to two years. This can admit an a contrario interpretation with regard to informative adverts of medical procedures, namely for surrogacy services carried out solely within the scope of article 8 and provided in public or private MAP centres expressly authorized for this purpose by the Ministry of Health.
10. Is it lawful to remunerate a facilitator/surrogacy agency No. Any person who, in any circumstance, derives economic benefit from the signing of surrogacy contracts or their promotion, by any means, shall be punished with imprisonment for up to 5 years (Article 8, paragraph 6 of Law No. 32/2006).
Romania -
Specific criteria
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
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.
Spain -
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.
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.
San Marino -
Current debate and specific situations
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
Sweden -
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) 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
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 -
Legal regulation
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;".
Ukraine -
Legal regulation
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.
Ukraine -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? NA
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? No
a. remuneration of the surrogate
b. remuneration of the gamete donor
c. advertising for surrogacy services
d. remuneration of facilitators
e. any other unlawful practices (please specify)
Ukraine -
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) Commercial
Ukraine -
Oocyte donation
8. Can the surrogate also be the oocyte donor? Yes
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)
Switzerland -
Oocyte donation
8. Can the surrogate also be the oocyte donor? NA
Switzerland -
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) 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?
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
United Kingdom -
Legal regulation
1. Is surrogacy regulated by a specific law in your country? No.
In part. There is no overarching law regulating surrogacy and no surrogacy regulator, as such. Legislation does, however, make commercial surrogacy arrangements illegal and recognizes altruistic surrogacy.
The procedures for setting up an arrangement for a woman to act as a surrogate for another party are subject to the provisions of the surrogacy arrangements act 1985.
Surrogacy agreements between the surrogate mother and the commissioning persons are not enforceable by law. Provisions for transferring legal parenthood from the surrogate to the intended parents are covered by the Human Fertilisation & Embryology Act 1990 (as amended 2008).
2. Is surrogacy regulated in another way? (please specify) Yes. The Human Fertilisation and Embryology Act 1990 (as amended 2008) governs treatment involving the use of donated gametes or in vitro fertilisation. The Act would also apply to surrogacy arrangements where these procedures are involved, including an assessment of the welfare of any child that might be born as a result of the treatment and any existing children that might be affected by the birth.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. In May 2016, a ruling in the Family Division of the High Court of Justice for England and Wales determined that single people can apply to be recognized as the legal parents of a child following a surrogacy arrangement. The law was subsequently changed in December 2018 to allow an application from an individual, subject to conditions, including that he/she is genetically related to the child.
4. Is there a legal definition of the term “surrogacy”? Yes. Two definitions (of Surrogate mother and Surrogacy Arrangement) in the Surrogacy Arrangements Act 1985 cover this:
England, Wales and Northern Ireland.
“Surrogate mother” means a woman who carries a child in pursuance of an arrangement.
- Made before she began to carry the child, and
- Made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable by, another person or other persons.
An arrangement is a surrogacy arrangement if, where a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.
Scotland
“Surrogate mother” means a woman who carries a child in pursuance of an arrangement.
- Made before she began to carry the child, and
- Made with a view to any child carried in pursuance of it being handed over to, and the parental right being exercised (so far as practicable) by, another person or other persons.
An arrangement is a surrogacy arrangement if, were a woman whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.
United Kingdom -
Applicable law
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? NA
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? No
a. remuneration of the surrogate
b. remuneration of the gamete donor
c. advertising for surrogacy services There are an increasing number of on-line adverts and companies advertising surrogacy packages in other countries, that are unlawful in the UK, but due to foreign servers they cannot be stopped from viewing in the UK.
d. remuneration of facilitators
e. any other unlawful practices (please specify)
United Kingdom -
Financial aspects
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive: Reasonable expenses only. Under the provisions of the Human Fertilisation & Embryology Act 1990 (as amended 2008) a surrogate may receive reasonable expenses, however, “expenses” are not defined in the Act. No money or other benefits may be provided for any part of the surrogacy arrangement unless authorised by a Court.
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
United Kingdom -
Legal aspects
5. Is surrogacy prohibited in your country?
a. any form of surrogacy No
b. only specific forms of surrogacy (e.g. commercial) Commercial. Commercial surrogacy arrangements are prohibited under the Surrogacy Arrangements Act 1985.
Cyprus -
Legal regulation
1. Is surrogacy regulated by a specific law in your country? Yes.
The Law on Medically Assisted Reproduction N.69(I) (initially approved by the Cyprus Parliament in 2015). This law has been revised in July 2016 regarding the qualifications of the Members of the Board on Medically Assisted Reproduction. More importantly, however, Article 23 of the 2015 Law has been amended and the details are given below:
- Before the amendment: Both the woman (wishing to have a child) and the surrogate mother-to-be must have had their permanent or usual residency addresses in the Republic of Cyprus.
- After the amendment: In the event that a surrogacy mother cannot be found in the Republic of Cyprus, then the Board on Medically Assisted Reproduction could grant permission for the surrogacy mother not to have a permanent or usual residency address in Cyprus.
2. Is surrogacy regulated in another way? (please specify) Yes.
According to Article 24(1) of the Law [N.69(I)/(2015)], following the appropriate authorization by the Board of Medically Assisted Reproduction a Court order is also required to regulate issues that would lead to the successful implementation of the surrogacy agreement.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. However, Court Cases in Cyprus, in reference to surrogacy, concern surrogacy disputes that have originated from agreements carried out in other Countries.
4. Is there a legal definition of the term “surrogacy”? (please specify) Yes. According to the Law, surrogacy is the case during which a woman carries and gives birth to a child on behalf of a couple following the transfer, using in-vitro fertilization methods, of an embryo produced with genetic material unrelated to the surrogate mother.
Cyprus -
Parentage
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother No
b. oocyte donor No
c. sperm donor No
d. intended mother Yes
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. In accordance with Article 25 of the Law, immediately after the birth of a child through surrogacy, parentage is immediately transferred to the intended parents.
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 No
b. oocyte donor No
c. sperm donor No
d. intended mother Yes
e. intended father Yes
17. Are foreign birth certificates in surrogacy cases registered in your country? We do not have any information on this to allow us to answer this question