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).
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.
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) Yes.
b. other criteria (please specify) Not commercial
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
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? 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.
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.
5. Is surrogacy prohibited in your country?
a. any form of surrogacy No
b. only specific forms of surrogacy (e.g. commercial) (please specify) Yes. According to Czech legislation, the human body and its parts must not be a source of financial gain.
9. Is it lawful to advertise surrogacy services? Yes. No specific prohibition, these procedures are offered, for example, on the sites of the MAR centers. However, the Czech Transplantation Act says: Advertising and advertising for the purpose of demand or offer of organs are prohibited
10. Is it lawful to remunerate a facilitator/surrogacy agency No. No agency officially exists yet. But at least one private centre seeks out prospective surrogate mothers and offers mediation to those interested in the procedure.