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.
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.
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? 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.”
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.
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.
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
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
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.
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?
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.
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? NO
a. surrogate mother
b. intended parent(s)
c. gamete donor
d. facilitator
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
b. remuneration of the gamete donor
c. advertising for surrogacy services
d. remuneration of facilitators
e. any other unlawful practices (please specify)
9. Is it lawful to advertise surrogacy services? N/A
10. Is it lawful to remunerate a facilitator/surrogacy agency? N/A
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
18. Is there:
a. any public discussion about the topic No
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned. N/A
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 surrogacy is devoid of legal value under certain principles in the Civil Code, such as the principle according to which the human body is extra-patrimonial and therefore cannot be traded.
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level No
Debates were held in the Senate, a report was delivered on 4 December 2015. Parliamentary initiatives to regulate surrogacy may emerge during this legislative period.
19. Please specify any additional relevant aspects which were not mentioned. N/A
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? Yes. In practice, we are informed of these illegal practices if a complaint is filed in court or if the facts are known to us (e.g. via the hospital or communal services of the Civil Registry).
a. remuneration of the surrogate Yes
b. remuneration of the gamete donor Yes
c. advertising for surrogacy servicesYes
d. remuneration of facilitators Yes
e. any other unlawful practices (please specify) Yes
9. Is it lawful to advertise surrogacy services? Yes, conditional. Under certain conditions, the informative adverts of medical procedures performed legally are authorised.
10. Is it lawful to remunerate a facilitator/surrogacy agency No
1. Is surrogacy regulated by a specific law in your country? No. The absence of a ban is to be declared as a permit. The one-off steps are regulated by the laws of MAR, adoption, determination of parenthood, and the donation of parts of the body.
2. Is surrogacy regulated in another way? (please specify) Yes. MAP regulation, laws of adoption, determination of parenthood, and the donation of parts of the body.
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Not yet.
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:
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 No
e. remuneration or comparable advantage 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.
According to Section 8 of the Act on Assisted Fertility Treatments (1237/2006), assisted fertility treatment cannot be provided, if there is reason to presume that the child will be given up for adoption.
According to Section 35 of the same Act, 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.
According to Section 45, Paragraph 3 of the Maternity Act (253/2018), a decision by which someone is established as the mother of a child instead of the person who has given birth to the child may be recognised only if:
A decision of a court or another authority and the establishment or registration of a legal act is deemed a decision as referred to above, if the relationship between a child and a woman is considered a maternal relationship as a result of such a measure (Section 45, Paragraph 4).
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes. Surrogacy has been subject of court cases with regard to surrogacy arrangements performed abroad. Some of the intended parents have sought recognition of legal parentage from the courts.
4. Is there a legal definition of the term “surrogacy”? (please specify) No. There is no legal definition in the letter of law. However, in a memorandum published by the Ministry of Justice in September 2012, surrogacy arrangements have been described as ”arrangements, where a woman (surrogate mother) becomes pregnant and gives birth to a child with the intention of the child to be given away after birth and to be raised by another person or couple (intended parent/parents)".
18. Is there:
a. any public discussion about the topic No
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned. N/a
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive: Not applicable, as medically assisted surrogacy is prohibited.
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? Not applicable, as medically assisted surrogacy is prohibited.
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 mother is the woman who gives birth to the child (Section 1591 of the Civil Code).
The father is the man who is married to the mother at the time of birth (Section 1592 number 1 of the Civil Code) or acknowledges the child with consent of the mother (Section 1592 number 2 of the Civil Code). This can be either the sperm donor, the intended father or another man, i.e. the husband of the surrogate mother. If the child has no legal father, the natural father can in principle be established as the legal father of the child (Sections 1592 number 3, 1600d of the Civil Code). Since 1 July 2018, this no longer applies to the official sperm donor, Section 1600d(4) of the Civil Code.
In cases where foreign law is applicable to questions of filiation, by virtue of Article 19 of the Introductory Act of the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB), its application is always subject to a public policy (ordre public) review. Problematic cases are particularly those in which the intended parents are assigned legal parenthood under foreign law by operation of law, even though they are not the biological parents. In the past, German courts have often tended to view this as a violation of public policy. It remains to be seen what influence the Federal Court of Justice’s decision of 2014 (see question 3) will have on future court decisions on this matter. The Federal Court of Justice itself has expressly left this question open in its subsequent decision of 2018 (see question 3).
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor Yes/No
d. intended mother No
e. intended father Yes/No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes. As regards legal paternity, cf. answer to question 13. The surrogate mother's legal parentage can only be transferred to an intended parent (woman or man) by way of adoption, to which general conditions apply.
15. Is the existence of a genetic link required for establishing paternity/maternity? No. See answer to question 13.
To date, German courts have delivered relatively few judgments dealing with the recognition of foreign judgments on legal parenthood. In the above-mentioned landmark decision of 2014 and in subsequent decisions (see answer to question 3), the Federal Court of Justice has so far only argued that a possible requirement of there being a genetic relationship would be sufficiently met if only one of the intended parents is genetically related to the child and the surrogate mother is not, due to an egg donation. Whether or not recognition of a foreign judgment that awards parenthood to two persons who are not genetically related to the child is contrary to German public policy is, therefore, unclear at present.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? The persons mentioned in the birth certificate are those whose legal parenthood has been established (cf. answer to question 13). The birth certificates or other official documents do not establish parenthood, but can be used as proof of parenthood towards other authorities and courts.
a. surrogate mother No
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
According to section 108 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction [Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit, FamFG], only foreign “judgments” can be recognised. As the issuing of a birth certificate normally does not require a substantive examination by a public authority of the foreign state, birth certificates usually cannot be considered to be foreign judgments in this regard. Therefore, they cannot be recognised in Germany.
18. Is there:
a. any public discussion about the topic No
b. planning of new regulation at national level Yes
19. Please specify any additional relevant aspects which were not mentioned. NA
8. Can the surrogate also be the oocyte donor? No
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes
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. Surrogacy is not allowed in the country.
15. Is the existence of a genetic link required for establishing paternity/maternity? NA
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 NA
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? Yes. Luxembourg appeal court ruling no 41814 of 15 July 2015
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:
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
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? The Biotechnology Act Section 7-5 criminalizes persons that wilfully contravene the Act. (Prohibition described in question 2.) This applies to all professionals, not only health professionals. It is specified that the provision applies neither to non-professional persons who seek or make use of services that are illegal under the Act, nor to persons who donate gametes or embryos.
a. surrogate mother NA
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
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) Yes
b. other criteria (please specify) Yes
There are no rules or regulations for surrogacy set by the government, apart from the criminal prohibition of (commercial) mediation between intending parents and surrogate mothers.
The guideline of gynecologists states that for surrogacy by means of IVF, a medical indication is necessary (uterus-based infertility of the mother, or a condition of the mother which is life threatening when pregnant). Medio 2016 an additional indication was added, i.e. male intended parents. Until then, also both gametes needed to be donated by the intended parents. This was changed; now treatment is also allowed if only one of the intended parents donates a gamete. That made IVF-surrogacy accessible to male couples. In 2019 the first clinic has started a pilot performing this treatment for male couples.
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level No. We are not aware of any planned new regulations.
19. Please specify any additional relevant aspects which were not mentioned. NA
9. Is it lawful to advertise surrogacy services? No. No specific prohibition. General rules regarding marketing apply.
10. Is it lawful to remunerate a facilitator/surrogacy agency No specific prohibition
5. Is surrogacy prohibited in your country?
a. any form of surrogacy Yes. Gratuitous surrogacy is pendant on a new legislative revision.
b. only specific forms of surrogacy (e.g. commercial) (please specify) No. Commercial forms of surrogacy are explicitly forbidden (Article 8, paragraph 2 of Law No. 32/2006).
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother NA
b. intended parent(s) NA
c. gamete donor 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
18. Is there:
a. any public discussion about the topic No
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned.
Growing cases of celebrities who turn to these media, especially homosexual couples, are known.
The Spanish Surrogate Association is promoting the legalisation of this method as another Assisted Reproductive Technology, which should not be an option only for the ones who can afford to travel abroad.
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? Although there is no law or regulation enacting the conditions of surrogacy in Türkiye, the surrogate motherhood is forbidden by law regarding the familial link article of the Civil Code. The conduct of surrogacy is criminalized by law.
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? It is known that surrogacy is forbidden by law in Türkiye, the conduct of surrogacy can be done abroad, outside Türkiye Even if it is done by Turkish citizens it cannot be openly revealed because of the familial (parenthood) link legalised by the Civil Code.
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)
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive: Surrogacy is not allowed
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
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, order N 787, 2013
15. Is the existence of a genetic link required for establishing paternity/maternity? Yes. Only in cases of any conflict situation
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 No
e. intended father No
17. Are foreign birth certificates in surrogacy cases registered in your country No. No cases are known
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency NA
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level Yes
In the light of debate by Parliamentarians and stakeholders, the UK Government has recognised that the existing legislative framework is in need of review, so the Law Commissions of England & Wales and Scotland undertook a comprehensive review of all aspects of surrogacy legislation, starting in 2018. A final report was published on 29 March 2023. The UK Government is considering the recommendations and will publish a response in due course.
19. Please specify any additional relevant aspects which were not mentioned.
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
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level Yes
Since the publication of the news (2022) that Prague is a place of birth and handover of children from Ukrainian surrogate mothers to foreigners, the topic is still present in all media. It is very often addressed by MPs, and in 2023 there were three independent parliamentary motions to ban the procedure, none of which were adopted. The Ministry of Justice is currently drafting legislation, the intention is strict regulation, not a ban.
19. Please specify any additional relevant aspects which were not mentioned.
In March 2023, the Casablanca Declaration was announced, calling for a universal ban on surrogacy. The representative of the CR (a member of the CDBIO) was one of the signatories and spokesperson directly in Casablanca at the announcement of the call (of course not on behalf of the CR, it is a private professional position) and continues to be a member of the active Casablanca team. The next meeting is at the beginning of April in Rome, the agenda is here: https://declaration-surrogacy-casablanca.org/wp-content/uploads/2024/02/Programme-Rome-En.pdf.
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
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 Yes. If sperm has been used domestically outside fertility treatments in order to fertilize an unmarried woman, the sperm provider will be considered as the father. If sperm has been used in fertility treatment for surrogacy abroad, confirming paternity depends on the recognition of the foreign decision and the circumstances involved.
d. intended mother No. Intended mother is not recognized as mother unless legal transfer of motherhood from the birth mother has taken place.
e. intended father No. Intended father without genetic link to the child is not recognized as father unless legally valid transfer of parentage has taken place. Whether consent to fertility treatment abroad is considered sufficient will depend on the recognition of the foreign decision and the circumstances involved.
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes, Adoption procedures may be applied in some cases. However, there are no specific provisions in the Adoption Act (22/2012) with respect to surrogacy.
15. Is the existence of a genetic link required for establishing paternity/maternity? No, however, in absence of genetic link, for paternity, marriage to the birth mother, valid consent to fertility treatment or a valid adoption decision will be required for recognition of paternity. In practice, these will all be international cases where rules on private international law on recognition of foreign decisions on paternity will be applied. According to Section 2 of the Maternity Act (253/2018), the person who has given birth to a child is the mother of the child irrespective of genetic link. The Act also includes the private international rules on maternity as stated under question no. 2.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? Not applicable, as medically assisted surrogacy is prohibited.
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor Yes
d. intended mother No
e. intended father No
17. Are foreign birth certificates in surrogacy cases registered in your country Yes. Section 45, paragraphs 3 and 4 of the Maternity Act (253/2018) state the conditions for recognition of foreign decisions and birth certificates in surrogacy cases.
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother Yes. Prosecution is possible on grounds of voluntary substitution, simulation or dissimulation resulting in an infringement of the civil status of a child (Article 227-13 of the criminal code).
b. intended parent(s) Yes
c. gamete donor, d. facilitator Yes
Article 227-12, paragraph 1 of the criminal code establishes a penalty of 6 months’ imprisonment and a fine of € 7,500 for the act of inciting one or both parents to abandon a child or an expected child either for commercial gain or through enticements, promises, threats or abuse of position.
Article 227-12, paragraph 2 establishes a penalty of one year’s imprisonment for having acted or sought to act as an intermediary, for commercial gain, between a person wishing to adopt a child and a parent wishing to relinquish his or her child. Article 227-12, paragraph 3 also establishes the same penalty for acting as an intermediary between a person or a couple wishing to receive a child and a women prepared to bear this child for the purpose of giving it to them, and two years’ imprisonment and a fine of € 30,000 for such acts when they have been committed repeatedly or for commercial gain. Attempting to commit these offences is also punishable.
12. Subject to the applicable law, are you aware of the following unlawful practices in your country? There is no legal information network. The information obtained by the French authorities is opportunistic: the sources are criminal investigations or data collected during civil cases brought by the families concerned in order to have foreign birth certificates transcribed in France.
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
9. Is it lawful to advertise surrogacy services? It is proposed that advertisements seeking a person to act as a surrogate or offering to act as a surrogate will be prohibited.
10. Is it lawful to remunerate a facilitator/surrogacy agency It is proposed that it will be an offence to receive renumeration for arranging a domestic surrogacy agreement. Under the proposed provisions regarding international surrogacy agreements, the utilisation of intermediaries abroad may be permitted if certain conditions are met.
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? N/A
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
b. only specific forms of surrogacy (e.g. commercial) (please specify)
It is proposed that under the planned legislation commercial surrogacy will be prohibited; however, the reimbursement of reasonable expenses will be permitted.
It is proposed that only gestational surrogacy will be permitted and there will have to be a genetic link to at least one of the intending parents.
8. Can the surrogate also be the oocyte donor? It is proposed that traditional or partial surrogacy will be prohibited and that only gestational surrogacy will be permitted.
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
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)
18. Is there:
a. any public discussion about the topic Yes
b. planning of new regulation at national level Yes
In 2016, the Government Committee on the reassessment of parenthood gave an advisory report on surrogacy and parenthood. The government has decided to regulate surrogacy by law and last summer a bill has been sent to Parliament. In Novembre 2023 there have been elections and a new Government will be formed.
19. Please specify any additional relevant aspects which were not mentioned. NA
13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes. But then adopted by the intended parents.
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. Now only adoption; but is under discussion in the Parliament.
15. Is the existence of a genetic link required for establishing paternity/maternity? Not yet, under discussion in the Parliament.
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth? Only the woman giving birth is involved and the father.
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
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? NA
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)
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.
5. Is surrogacy prohibited in your country? NA
a. any form of surrogacy
b. only specific forms of surrogacy (e.g. commercial) (please specify)
8. Can the surrogate also be the oocyte donor? NA