In Portuguese we call it “Gestação de Substituição” which stands for any situation where a woman carries a pregnancy, substituting the future mother, giving the child after birth thus renouncing the exercise and rights of parenthood.

With the third review of the Portuguese Medical Assisted Procreation Law, nº32/2006 surrogacy came to be allowed in our country. Creating a completely different paradigm as MAR is concerned.

First, the Medically Assisted Reproduction extended the scope of users, embracing female couples and single women. On August 22^nd 2016, the surrogacy Law nº. 25/2016 is published. This law permits and regulates the access of patients to the surrogacy programme.

Inevitably a lot of social, economical and ethical issues risen with this change, something that we understand that needs an adaptation time.

There are some countries in EU where surrogacy is allowed. As showed in last Council of Europe meeting, held in Strasbourg, the United Kingdom, Belgium, Netherlands, Czech Republic, Greece, Romania, Ukraine, Georgia, Russia and Portugal are the countries where this practice is permitted, but only few of them have legislation. In some of these, although surrogacy is a reality, there´s no legal support or protection of the patients.

Since it has such a complex legislation and bureaucracy, these treatments take time to be approved. In Portugal, per our surrogacy law, only cases of uterus absence, illness or a major problem with the uterus (from which may result the impossibility to have a healthy and viable pregnancy) make the legal and medical framework that allows to go through a surrogacy treatment.

At the present time, only heterosexual and women couples or single women, in these previously listed conditions, may be candidates to a treatment. These can only be done in public or private medical clinics, authorized by the Portuguese Minister of Health.

Some legal issues regarding this matter:

1. The surrogacy mother cannot be at the same time oocyte donor, while the surrogacy treatment occurs.
2. It is not legal any payment or donation of any property or right from the beneficiaries to the surrogacy mother, except what is well established by law, like costs or expenses arising out from medical care.
3. The women that will go through de surrogacy process must be someone that the couple chooses or recommends. It cannot exist mediation companies offering services.
4. The doctors and clinics must do an assessment of physical and psychological conditions of the couple and surrogacy mother.
5. The child that will be born through surrogacy treatments becomes the son/daughter of the corresponding beneficiaries.

Portugal reality:

The surrogacy law was at our Constitutional Court because political opposition asked for a revision due to concerns about its legality. Different groups have written manifests sustaining this cause, like Portuguese Fertility Association (APF).

The Court decision was announced 3 weeks ago. It said that some standards are unconstitutional. This means that at the moment everything stops until a new law about surrogacy rises up. In the future we will be able to do Surrogacy treatments in Portugal, but only after a new law be established with all issues well defined.

All the patients that require permission to our authorities regarding surrogacy treatments will not proceed for now, around seven, despite ninety requests for clarification or information. (It seems a small number of cases, although all the intense work from CNPMA, with many deliberations made and many rules defined)

The only exceptions are the treatments that already were approved by National Counselling of Assisted Medical Procreation (CNPMA), only two.

Another theme debated was the donor’s anonymity in Portugal, something that may change in the future. The wellbeing of the child maybe compromised if not having the right of knowing their genetic origin. If so, a new law can arise, and maybe Portugal becomes another country where donors (gametes and embryos) have to be non-anonymous.

These last weeks have become really “disturbing moments” to Medically Assisted Reproduction. All personnel involved, doctors, embryologists, nurses, psychologists, jurists and most of all, the patients are really anxious about what new law can bring, and specially when this will happen…

Lisboa, 18^th May, 2018