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
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
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
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
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
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
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
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
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.
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. 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.”
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).
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
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)
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
5. Is surrogacy prohibited in your country? It is not subject of any law or reglementation. It is not regulated.
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.
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.
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
8. Can the surrogate also be the oocyte donor? No
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.
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
8. Can the surrogate also be the oocyte donor? NA
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
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?
a. medical criteria (e.g. infertility of the intended parent(s)) N/A
b. other criteria (please specify) N/A
8. Can the surrogate also be the oocyte donor? N/A
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? 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
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
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
8. Can the surrogate also be the oocyte donor? NA
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
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
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
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.
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
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.
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
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) 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;".
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.
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.
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.
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:
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.
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)
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
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
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).
8. Can the surrogate also be the oocyte donor? Not applicable, as medically assisted surrogacy is prohibited.
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
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
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
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.
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
8. Can the surrogate also be the oocyte donor? NA
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)
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
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.