Unblocking the implementation of altruistic surrogacy in Portugal: inclusive legal reform proposals through a comparative analysis

Abstract

This article examines the Portuguese surrogacy regime, which has undergone significant modifications over eight years but remains unimplemented. It traces the evolution of surrogacy law in Portugal from its legalization in 2016 up to 2024, emphasizing the impact of two unconstitutionality judgments and presidential vetoes. It then identifies practical and legal obstacles preventing policy implementation: a lack of resource allocation to the competent body and uncertain legal parenthood once the surrogate revokes consent. To propose solutions to some problems derived from its legal regime, a comparative methodology is employed, exploring altruistic surrogacy in the UK, South Africa, and Ontario (Canada). These systems, operational for years and sharing characteristics with the Portuguese model, provide insights into its strengths and weaknesses. This cross-national study presents reform proposals to address some legal challenges of the current regime, which could facilitate inclusivity and the successful implementation of surrogacy in Portugal. Recommendations include adopting a broader definition of infertility and establishing provisions for triple legal parenthood in cases where a surrogate revokes consent. The paper argues that substantial time and effort have been invested in developing this regime. Therefore, once the most critical issues are addressed through further regulation, policy implementation should be prioritized. The paper concludes that additional improvements in surrogacy law can only occur if the practice is operational in Portugal.

I. Introduction

The appearance and rise in popularity of Assisted Reproductive Technologies (ARTs) in the late 20th century sparked numerous bioethical discussions among the public that permeated multiple political agendas.¹ In February 1986, Portugal celebrated a historic moment with the birth of its first child conceived through in vitro fertilization.² Given the legal system’s unpreparedness to support such reproductive methods, the quick creation of the multidisciplinary Comissão para o Enquadramento Legislativo das Novas Tecnologias was deemed imperative.³ This commission aimed to propose necessary legislative reforms to establish specific regulations addressing the emerging realities of reproductive technologies. But, despite its efforts, a legal vacuum persisted for 20 years,⁴ since several legal initiatives failed to advance due to a lack of consensus in Parliament and vetoes from the President of the Republic.⁵ Consequently, even though surrogacy and other ART-based parenthood issues became public concerns in Portugal by the late 20^th century, their regulation was delayed due to ongoing controversies until the approval of Lei n.° 32/2006, de 26 de julho, da Procriação Medicamente Assistida (LPMA).

Among the issues that were to be included in the Act, surrogacy emerged as a significant controversial dilemma. While historically practiced,⁶ ARTs introduced a new layer of complexity by allowing surrogates to gestate babies to whom they were not genetically related, which was perceived as less unethical than traditional surrogacy.⁷ However, the initial position regarding surrogacy in the Portuguese legal system was to forbid its validity in any of its forms.⁸ But this prohibitionist stance was clearly unsuccessful, given that from 2006 until its legalization in 2016, surrogacy remained a topic of political debate in the country.⁹ Eventually, the Portuguese legislative power agreed on permitting surrogacy under certain conditions through Lei n.° 25/2016, de 22 de agosto, que regula o acesso à gestação de substituição, procedendo à terceira alteração à Lei n.° 32/2006, de 26 de julho (procriação medicamente assistida).

This Act defines surrogacy as ‘[…] the situation in which a woman¹⁰ is willing to undertake a pregnancy for someone else and hand over the child after birth, renouncing the powers and duties of motherhood’ (art. 8.1 LPMA).¹¹ It must be noted that, in Portugal, surrogates cannot contribute their own genetic material (art. 8.4 LPMA in fine). Therefore, the legalized type of surrogacy is what the literature calls ‘gestational surrogacy’ and must be distinguished from ‘traditional surrogacy’, which implies that the surrogate is also genetically related to the baby.¹² Furthermore, Portuguese surrogacies must be altruistic, given that it is prohibited for beneficiaries to make any payments or donations to the surrogate for the pregnancy, except for ‘health-related expenses’ (art. 8.7 LPMA).

Since its initial approval in 2016, there have been amendments to align the regulation with the country’s Constitution.¹³ However, there is a lack of resources, an nonexistent tangible infrastructure to apply the policy,¹⁴ and preoccupying ambiguity regarding legal parenthood of a child born through surrogacy whenever the surrogate revokes consent.¹⁵ This scenario underscores the persistent difficulties encountered by the implementation of this policy, which explains why in a timespan of eight years there has yet to be a single successful surrogacy performed in Portugal.

Given the State’s inability to implement a policy approved eight years ago, this article explores ways to move surrogacy forward from its current state of non-implementation. After briefly outlining the trajectory of the policy from 2016 to 2024, the article will highlight its implementation problems, which arise from both the legal uncertainty of the current Act and the lack of resource allocation to the competent body. But, until the first set of problems is solved, the second one is unlikely to be addressed. Thus, this article will explore solutions for two of the key issues identified in the regulation. It will focus on the requirements for becoming intended parents and surrogates, as well as the transfer of legal parenthood, with special attention to cases where the surrogate revokes consent. Other relevant issues will not be addressed,¹⁶ as the article aims to provide a comprehensive analysis of these two central problems.

The primary challenge is that, after the Constitutional Court mandated the legislative power to pass a legal text granting surrogates the right to revoke their consent after the baby’s birth,¹⁷ the law failed to address the subsequent legal parenthood of the child. This issue and the eligibility criteria to become intended parent(s) and surrogate will be assessed through a comparative study of three jurisdictions where altruistic surrogacy allows the surrogate to revoke consent: the UK, South Africa, and Ontario (Canada).¹⁸ By analyzing how these jurisdictions handle these controversies, I will propose reforms to enhance legal certainty and inclusivity in the Portuguese policy.

II. The evolution of the law on surrogacy in Portugal

1. Initial legislation and first unsuccessful tries of implementation (2016–2018)

Surrogacy in Portugal serves as both a solution to and a source of social issues. The State acknowledges that, in exceptional situations, individuals with gestational capacity may be willing to carry a child for others. However, due to ethical reservations, access to this reproductive option is restricted to those with strict medical infertility.¹⁹ Despite this narrow scope, the situation raises a significant concern: the potential exploitation of gestational carriers, predominantly women.²⁰ Without restrictive measures, these individuals might agree to this physically and emotionally demanding role out of economic necessity, without adequate safeguards or mental health support.²¹ Thus, the State has an interest in preventing their exploitation and ensuring their well-being by establishing that surrogacy must be altruistic and monitored.²²

In 2016, when the LPMA was amended to legalize the practice, it defined the roles within surrogacy agreements, positions that have been debated by the Portuguese doctrine throughout the years. The surrogate must be someone with gestational capacity and willing to relinquish motherhood (art. 8.1 LPMA), and the intended parent(s) must be either a single biological female without a uterus, with a damaged uterus, or with another medical condition that permanently and absolutely prevents pregnancy; or a couple where at least one partner meets this criterion (art. 8.2 LPMA). Such framework positions surrogacy in Portugal as a subsidiary form of reproduction rather than an outright alternative and excludes single male persons and male same-sex couples from accessing the service. Furthermore, there must be a genetic link between the intended parent(s) and the baby, with single parents providing eggs, and couples having at least one member who is either a sperm or egg donor.²³

It is noteworthy that some Portuguese authors focus exclusively on couples when discussing the role of intended parents. This interpretation stems from the language of the Act, previous regulatory decrees, and consultative opinions from specialized administrative bodies, which constantly refer to ‘beneficiaries’ in the plural across their provisions.²⁴ In contrast, other authors argue that the requirement of medical infertility applies solely to the female individual, thereby supporting their independent access to surrogacy.²⁵ Since single parenthood through ARTs (limited to female persons) and adoption is allowed in Portugal,²⁶ I argue that as long as the intended parent is a female person with a medical condition that impedes pregnancy, their exclusion from surrogacy would be unjustified if they are able to provide an egg.²⁷ Therefore, in this article, I will consistently consider the possibility of either one or two intended parents.

The Conselho Nacional de Procriação Medicamente Assistida (CNPMA) is the designated institution responsible for receiving and evaluating surrogacy petitions, as well as overseeing the process once approval is granted.²⁸ Initially, the evaluation only required consultative input from the Ordem dos Médicos.²⁹ During this period, the law was vague regarding the content of the surrogacy agreement.³⁰ It prohibited beneficiaries from making any payments or donations to the surrogate, except for documented health-related expenses, including transportation.³¹ Additionally, surrogacy agreements could not be made if there was an economic subordination relationship between the parties.³² Former art. 8.10 LPMA mandated that the contract had to be written, supervised by the CNPMA, and include provisions for foetal malformations, diseases, and potential voluntary termination of pregnancy.³³ Former art. 8.11 LPMA prohibited behavioural restrictions on the surrogates and ensured the protection of their rights, freedom, and dignity.³⁴ Thus, most of the agreement’s content was left to the parties’ autonomy.³⁵ Former art. 8.12 LPMA established that any surrogacy agreement, whether free or onerous, that did not comply with the preceding provisions would be null and void.³⁶

Importantly, former art. 8.7 LPMA established that the intended parent(s) would automatically assume legal parenthood of the born child. At this initial stage, surrogates had no option to revoke their consent once the ART took place,³⁷ unless they opted to terminate the pregnancy within the allowed legal timeframe,³⁸ meaning they were obliged to hand over the child to the intended parent(s) if they carried on with the pregnancy. Moreover, art. 15 established that all those who, in any way, became aware of the use of ARTs, including surrogacy, or the identity of any participants in these processes, were required to keep this information confidential and also, that the birth certificate must not, under any circumstances, indicate that the child was born through an ART, including cases of surrogacy. At the time, there was not a right to know one’s origins in parenthood derived from ARTs in general.

During the 2017–2018 period, there was an attempt of implementation,³⁹ with one recorded decision granting permission for surrogacy in December 2017.⁴⁰ However, this approval did not result in a pregnancy due to a subsequent policy suspension after the parliamentary groups of Partido Social Democrata (PSD) and Partido do Centro Democrático Social—Partido Popular (CDS-PP) challenged the LPMA and requested successive abstract constitutional review of several articles of the norm to the Constitutional Court.⁴¹ They argued that the lack of a right to know one’s origins through ARTs and surrogacy violated the principle of human dignity and the State’s duty to protect children.⁴² They also claimed that surrogacy was an unconstitutional practice given that, even when unpaid, it represents the commercialization of human beings, reducing the child to a legal transaction object and the surrogate to a mere incubator for the beneficiaries.⁴³ The signatories also contended that women might be coerced into surrogacy through emotional pressure, threats, or promises related to their work or family, even in altruistic cases.⁴⁴

2. Paralyzation due to judgements of unconstitutionality (2018–2021)

The previous demand for constitutional review of anonymity in ARTs and surrogacy in general was accepted by the Constitutional Court and, thus, paralyzed the incipient try of implementation of the latter once a decision was reached.⁴⁵ In Judgement No. 225/2018, the court declared the unconstitutionality of the norms in paragraphs 2, 3, 4, 10, and 11 of former art. 8 LPMA. The content of these norms was deemed a violation of the principle of legal certainty due to the vagueness of the text highlighted in the previous subsection.⁴⁶

It also declared the unconstitutionality of the norm in former art. 8.8 LPMA, in conjunction with art. 14.5 of the same Act, as they did not allow surrogates to revoke their consent regarding relinquishing motherhood once the ART was performed.⁴⁷ This was considered an excessive restriction that violated the right to the free development of the personality of surrogates, interpreted in accordance with the principle of human dignity, and the right to constitute a family.⁴⁸ For the same reason, the court declared the unconstitutionality of former art. 8.7 LPMA.⁴⁹

Former art. 8.12 LPMA was also deemed unconstitutional due to a violation of the child’s right to a personal identity, as well as the State’s duty to protect children,⁵⁰ given that it caused uncertainty about the legal parenthood of the child after a surrogacy agreement became null.⁵¹ Moreover, the court declared the unconstitutionality, for violating the rights to personal identity and the development of one’s personality, of the norms in paragraphs 1 and 4 of art. 15 LPMA, insofar they imposed an absolute secrecy obligation regarding persons born through ARTs with the use of gamete or embryo donation, including surrogacy, concealing the identity of the participants as donors or surrogate mothers.⁵²

The PSD and CDS-PP had contested the LPMA’s provisions on surrogacy in their entirety, but the court did not declare any of the additional articles mentioned in the applicants’ petition unconstitutional.⁵³ This meant that altruistic surrogacy was not deemed an unconstitutional practice as these two parliamentary groups had intended.⁵⁴ Instead, the regulation needed to be revised to avoid legal uncertainty and to ensure respect for the fundamental right to the free development of the personality of the surrogates and the surrogacy born children.

To comply with the judgement, new modifications of the LPMA had to be approved.⁵⁵ In July 2019, the Parliament passed an amendment of the legal regime of ARTs through Lei n.° 48/2019, de 8 de julho, do regime de confidencialidade nas técnicas de procriação medicamente assistida, procedendo à sexta alteração à Lei n.° 32/2006, de 26 de julho (procriação medicamente assistida). This Act modified art. 15 LPMA to allow people born through ARTs to know the identity of the sperm and/or egg donors from age 18. However, this amendment still did not include the right to know the identity of the surrogate nor the right of surrogates to revoke their consent after the ART procedure, as mandated by the Constitutional Court the previous year.⁵⁶

To adhere to the constitutional mandate regarding the rights of surrogates, the Parliament approved a Bill on 19 July 2019, amending the LPMA. This Bill was then sent to the President of the Republic for promulgation as an Act. However, the President, believing that the new legislation did not meet the Constitutional Court’s requirements, requested a preventive constitutional review of the text.⁵⁷

Although the amendment introduced new articles specifying the content of the agreement and the rights and duties of the parties,⁵⁸ the President identified two provisions in art. 2 of the Bill that were inconsistent with Judgement No. 225/2018. These provisions did not eliminate the problematic paragraphs (art. 8.8, which was art. 8.13 in the Bill, and art. 14.5) that referred to art. 14.4 LPMA, which stipulated that consent revocation could only occur until the start of the ART therapeutic processes.

In September 2019, the Constitutional Court ruled part of the LPMA’s proposed amendments unconstitutional. Through Judgement No. 465/2019,⁵⁹ it determined that this Bill violated the right of surrogates to the free development of their personality because it did not allow them to revoke their consent after pregnancy had begun, as mandated by the previous judgement.⁶⁰

Public debate for a definitive amendment started over, but it was not up until 2021 that a version that complied with the Constitutional Court’s demand was finally passed.

3. Current obstacles: the unknown consequences of the surrogate’s consent revocation and the unfulfilled requirement of further regulation (2021–2024)

Through Lei n.° 90/2021, de 16 de dezembro, que altera o regime jurídico aplicável à gestação de substituição, alterando a Lei n.° 32/2006, de 26 de julho, que regula a procriação medicamente assistida (hereinafter Lei n.° 90/2021), the Portuguese surrogacy regime was officially amended for the first time since its legalization in 2016. This amendment aimed to address all the controversies previously highlighted by the Constitutional Court.

The most significant modification involves the revocation of the surrogate’s consent after the ART has taken place and after the legally allowed period to terminate the pregnancy has passed. In the current regime, surrogates can revoke their consent and assume motherhood until the registration of the baby, which must occur within 20 days after birth (art. 8.10 LPMA, in conjunction with art. 96.2.b of the Código do Registo Civil). If the surrogate does not exercise this right within this timeframe, legal parenthood is granted exclusively to the intended parent(s) (art. 8.9 LPMA). Additionally, art. 14.5 LPMA, which addresses the parties’ consent, includes the surrogate’s right to revoke it as established in art. 8.10 LPMA.

Other changes implied the expansion of art. 8 LPMA with new sections. This extension aimed to address the legal uncertainties that the court had criticized regarding the vagueness of the content of the surrogacy agreement. According to art. 8.13 LPMA, surrogacy agreements must be written and supervised by the CNPMA, and must include clauses on the surrogates’ medical obligations, their rights in choosing obstetric care and receiving psychological support, and their rights to refuse certain medical procedures. The contract must also cover complete and adequate information about clinical techniques and their risks, the impact of the surrogate’s lifestyle on foetal development, health contingencies during pregnancy, voluntary pregnancy termination, terms for contract termination, consent revocation, the prohibition of any form of payment beyond health-related expenses, associated health insurances, and conflict resolution methods. Finally, the contract cannot impose any terms that infringe the surrogate’s rights (art. 8.14 LPMA). Upon approval of the surrogacy agreement by the CNPMA, fertilization will take place at an authorized medical centre (arts. 8.6.c and 8.6.d LPMA). Also, arts. 13-A and 13-B were introduced to clearly establish the rights and duties of the surrogates, respectively.

Moreover, the new art. 8.3 LPMA introduced a nuance regarding who can fulfil the role of the surrogate, stating a preference for individuals who have previously been mothers.⁶¹ Meanwhile, the new art. 8.5 LPMA added the Ordem dos Psicólogos as a consultative body,⁶² alongside the Ordem dos Médicos, to provide input whenever a surrogacy petition is received. Finally, art. 2 of Lei n.° 90/2021 also specified that access to surrogacy in Portugal was to be limited to national citizens and foreigners with permanent residence.

Despite these new norms clarifying some previous areas of legal uncertainty, several problems persist. Foremost among these is the regulation’s failure to address potential conflicts when both the surrogate and the intended parent(s) wish to parent the newborn. Articles 8.9 and 8.10 LPMA suggest that the transfer of legal parenthood is not automatic upon consent revocation but do not clarify what happens if both parties seek parenthood.⁶³ This is a key issue that remains legally uncertain, and until it is resolved, efforts to allocate funds to the CNPMA for policy implementation are unlikely. Currently, there is a clear absence of the purported procedure for initiating the surrogacy process on the CNPMA’s website,⁶⁴ attributed to a lack of funding for the body to assume its new surrogacy-related functions.⁶⁵ However, the regulation’s incompleteness could serve as a justification for not creating the avenues needed to implement the policy.⁶⁶

Acknowledging these gaps, Lei n.° 90/2021 stipulated in its art. 5 that the government had 30 days to approve a regulatory decree to further develop the Act. This regulation needed to describe the process for applying for surrogacy permission and, importantly, address legal parenthood in the event of consent revocation. Although the deadline for this regulation was January 2022, the Government did not approve it until 16 November 2023,⁶⁷ with the Council of Ministers passing Decreto Lei 126/XXIII/2023, que regulamenta a Lei n.° 90/2021, de 16 de dezembro, veio alterar o regime jurídico aplicável à gestação de substituição, alterando a Lei n.° 32/2006, de 26 de julho, que regula a utilização de técnicas de procriação medicamente assistida (hereinafter Decreto Lei 126/XXXIII/2023).⁶⁸ However, in January 2024, the President of the Republic vetoed this regulation because expert bodies like the CNPMA and the Conselho Nacional de Ética para as Ciências da Vida (CNECV)⁶⁹ had not reviewed the final text, having only commented on earlier versions.⁷⁰

Now, the government must draft a new regulation addressing the weaknesses identified by these two bodies. However, following the Parliamentary elections in March 2024, which resulted in a change of government, the Partido Socialista (PS) left a draft regulatory decree for the new government led by the PSD.⁷¹ The PSD may choose to work on this existing draft, but there is also a possibility that they will start from scratch on the regulation, further delaying the overall process.

III. Comparative analysis of key legal controversies and reform proposals

As stated in the previous section, surrogacy in Portugal remains a policy yet to be implemented. While practical problems stem from a lack of funding for the competent body responsible for implementation, efforts towards its application are unlikely to be made until the issues arising from vague regulations on critical matters are resolved. The following subsections will analyze two of the most criticized issues under the Portuguese surrogacy regime. These problems are examined chronologically, starting with the requirements for becoming intended parents and surrogates, followed by the timing of the transfer of legal parenthood, with special emphasis on the definition of legal parenthood after the surrogate’s revocation in a separate subsection.

To propose solutions, a comparative analysis on these issues will be conducted, primarily focusing on the regulations of the UK, South Africa, and Ontario (Canada). The aim is to identify their strengths and weaknesses and suggest solutions to Portugal’s legal challenges. These jurisdictions were selected for their legal recognition of altruistic surrogacy and their allowance for surrogate consent revocation during pregnancy and post-birth.⁷² The analysis excludes cross-national surrogacy issues,⁷³ focusing solely on domestic practices. Additionally, although traditional surrogacy is permitted in these jurisdictions,⁷⁴ it will not be proposed for inclusion in Portugal, as the legislative decision to allow only gestational surrogacy has not been perceived as problematic.⁷⁵ Although surrogacy presents complex dilemmas with no universal solutions,⁷⁶ the aim of this comparative exercise is to identify potential remedies from these regimes to strengthen inclusivity in Portugal’s surrogacy regulations and support the successful implementation of this policy.

1. Requisites to be intended parent(s) and surrogate

The first questionable issue from a legal point of view is that, under current art. 8.2 LPMA, the intended parent(s) must be either a biological female medically unable to become pregnant, or a couple where at least one person meets this criterion.⁷⁷ Several Portuguese academics have voiced how this highly restrictive requirement of medical infertility is controversial,⁷⁸ given that it gatekeeps single trans-women, single cis-men, homosexual couples formed by two cis-men or two trans-women, and heterosexual couples between a cis-man and a trans-woman from the role of intended parent(s).⁷⁹ Although this issue went largely unnoticed during the political debate on Portuguese surrogacy legislation,⁸⁰ some authors have consistently questioned it since the practice was legalized.⁸¹ While it has been suggested that the omission of these identities from the role of intended parent(s) may have been deliberate, aimed at avoiding an overly progressive regulation that could provoke resistance from more conservative sectors;⁸² others, on the other hand, have stated that, despite any possible strategic aim, such exclusion constitutes a violation of the fundamental right of non-discrimination on the grounds of sex and sexual orientation.⁸³

In addition to its discriminatory nature, this exclusion is considered a poor strategic decision by some. Rather than promoting the ethical, domestic use of surrogacy—where the altruistic nature of the process is monitored—these restrictions drive excluded individuals to seek reproductive services abroad, often in countries where more controversial forms of commercial surrogacy are practiced.⁸⁴ These arrangements are typically still recognized in Portugal, despite ethical concerns, with the decision often justified by prioritizing the child’s best interests.⁸⁵

The UK, South Africa, and Ontario permit these individuals to access surrogacy services. The UK and Ontario do not require infertility for entering surrogacy agreements as an intended parent, while South Africa considers biologically male couples or individuals as infertile due to their relationship configuration or lack of it, allowing them access because they cannot reproduce without a third party.⁸⁶ It is noteworthy, however, that, initially, both the UK and South Africa did not clearly permit all these individuals to be intended parents. In both cases, litigation was initiated to grant excluded identities access to this role.

In the UK, intended parents must apply for a parental order to become the legal parents of a child born through surrogacy.⁸⁷ Initially, only couples were eligible to be intended parents under section 54 of the HFEA.⁸⁸ Section 54A, which allows for single applicants, was introduced following the case of Z (A Child) (No. 2),⁸⁹ where a single man argued that his right to private and family life under the Human Rights Act 1998 was violated because he could not obtain a parental order as a single person under the HFEA.⁹⁰

In South Africa, while single individuals have always been permitted to be intended parents if they are genetically linked to the baby and physically unable to carry a child,⁹¹ both intended parents in a couple have to be genetically related to the child unless there are ‘biological, medical or other valid reasons’ to excuse them from the requirement.⁹² This wording raised the question of whether the nature of a same-sex couple’s relationship would be a valid reason to waive this requisite. This issue was resolved in one of the first judgements authorizing surrogacy in South Africa. In Ex parte WH 2011,⁹³ a same-sex male couple was granted access to surrogacy after proving compliance with all legal requirements, demonstrating that ‘structural infertility’ was a valid justification for accessing surrogacy.⁹⁴

Allowing individuals with these identities to become intended parents by adding a ‘structural’ understanding of infertility—beyond just a strictly medical perspective—could help prevent future anti-discrimination litigation in Portugal once the policy is implemented. This approach maintains surrogacy as a subsidiary option, as access would still be limited to those who are infertile due to a medical condition, their relationship configuration or lack thereof.⁹⁵ One potential critique is that these people do not need surrogacy since they have access to adoption; however, the same argument could be made for female persons medically unable to carry a child, whether single or in a couple, yet they have had theoretical access to surrogacy since its legalization.⁹⁶

By establishing pre-birth restrictive criteria to access this practice, it appears that the surrogacy regime in Portugal aligns more closely with an adoption model of parenthood rather than a natural one.⁹⁷ In this context, it is logical to have specific requirements for becoming an intended parent. What is striking, however, is that while Portuguese single males and male same-sex couples can access adoption and are evaluated by professionals based on their parenting potential,⁹⁸ the barriers to surrogacy are based solely on sex and sexual orientation, rather than on parenting abilities. This discrepancy makes this legislative option a particularly controversial one.⁹⁹

On the other hand, the Act’s wording leaves room for an interpretation that could technically deny transgender men the opportunity to become surrogates, as the LPMA explicitly refers to ‘woman’ when mentioning this role (art. 8.1 LPMA). This is incoherent with Lei n.° 38/2018, through which Portugal allows people to modify their legal gender without any requisites. Thus, there could be persons whose legal gender is established as ‘male’ who have gestational capacity and would be willing to become surrogates. Moreover, even if interpreted to include transgender men, the cis-normative language might deter their participation. Therefore, the use of a gender-neutral term for surrogates such as ‘gestational person’ would align the policy with Portugal’s trans-inclusive legal framework. This lack of reference to the gender of the surrogate has already taken place in jurisdictions such as Ontario, where the term surrogate alongside an intentional omission of gendered words had the aim to have a trans-inclusive regulation.¹⁰⁰

2. Time of the transfer of legal parenthood

Another identified issue is the timing of when legal parenthood is transferred, a matter closely tied to the protection of the surrogate’s rights. The legislative decision between assigning legal parenthood to the intended parents before birth or through post-birth orders involves balancing the interests of all parties.

In the UK, legal parenthood is not recognized for the intended parent(s) until the baby is born. This is because surrogacy arrangements are not legally enforceable under section 1A of the Surrogacy Arrangements Act 1985.¹⁰¹ Thus, the surrogate retains legal rights over the child unless a parental or adoption order is granted. According to section 33 of the HFEA, the person who carries the child is considered the mother. If the surrogate is married or in a civil partnership, their spouse or partner is considered the other legal parent under sections 35 and 42, unless they did not consent to the surrogacy.

The process of transferring legal parenthood of the child from the surrogate to the intended parent(s) is performed via application for a parental order. This is a type of court order that provides a legal pathway for intended parents to obtain legal parenthood of children to whom they are genetically related without needing to go through the adoption process.

The criteria to apply for a parental order are regulated under sections 54 and 54A HFEA. One of the applicants’ gametes must have been used in the insemination,¹⁰² the application must be made within six weeks and six months of the child’s birth,¹⁰³ the child must be living with the applicant(s) at the time of the application,¹⁰⁴ and at least one applicant must be domiciled in the UK.¹⁰⁵ The applicant(s) must be over 18,¹⁰⁶ and the surrogate and any other individual with parental rights must give informed consent.¹⁰⁷ The court must also be satisfied that no payments beyond reasonable expenses have been made unless authorized by the court.¹⁰⁸ Some of these requirements, however, have proven to be flexible in practice, as courts have occasionally excused them to favour the child’s best interests.¹⁰⁹ If the parental order application is successful, a new birth certificate is issued which identifies the new legal parents.¹¹⁰

Firstly, this ’posterior’ mechanism of transferring legal parenthood has been proven troublesome when one of the parties revokes their consent. While the rationale is to protect the surrogates’ right to retain motherhood if they regret their decision,¹¹¹ the reality is that the intended parents might withdraw their consent if the baby does not meet their expectations. This situation can be problematic as it obligates surrogates to undertake a responsibility they did not anticipate,¹¹² or sue the genetic intended parent(s) for them to assume their share of obligations.¹¹³ Additionally, this system may lead to disputes when both the surrogate and the intended parents want to parent the baby. As stated before, the parental order cannot be applied for if a surrogate refuses to consent; situation where the surrogate will retain legal parenthood even if the child is being raised by the intended parent(s).¹¹⁴ In such cases, the resolution will require judicial intervention, with the court prioritizing the best interests of the child, and will most likely end up either granting custody to the surrogate or transfer the parental responsibility to the intended parents.¹¹⁵

On the other hand, even when there are no controversies between the parties, there is an initial period where the child lives with the intended parent(s) while they do not have parental responsibility. While some of the literature states that this rarely causes problems in practice, there may be occasions where the intended parent(s) do not have the legal right to consent to healthcare treatment on behalf of the child, for instance.¹¹⁶

So, under a post-birth order system, the surrogate’s consent is required after the child is born to transfer legal parenthood to the intended parent(s). Theoretically, this approach favours surrogates, allowing them to keep the child if desired.¹¹⁷ However, it also allows the intended parents to avoid their obligations if they no longer wish to care for the child, particularly in the event of a child born with health issues.¹¹⁸

Contrarily, South Africa has a pre-birth system for transferring legal parenthood, while Ontario recognizes parental responsibility for the intended parents from birth but also grants the surrogate parental responsibility over the child until they consent to transfer their legal parenthood.

In South Africa, the surrogacy agreement between the surrogate and the intended parents must be written and signed by all the parties and later validated by the High Court before fertilization.¹¹⁹ For a surrogacy agreement to be approved, several conditions must be met.¹²⁰ If there is only one intended parent, they must be genetically related to the child.¹²¹ If there are two intended parents, both must be genetically related to the child unless infertility or the nature of their relationship makes this impossible.¹²² The intended parent(s) must also be physically unable to carry a child independently.¹²³ The surrogate mother must have had at least one previous pregnancy and successful delivery, and must have at least one living child.¹²⁴

This validation enables the intended parents to be recognized as the legal parents from the outset,¹²⁵ reducing uncertainty. However, if the surrogate mother is also the genetic mother and revokes consent within the allowed timeframe, the law stipulates that she will hold legal parenthood.¹²⁶ If she has a spouse or partner, they will also be recognized as a legal parent.¹²⁷ If the surrogate is single, the intended father will be registered as the second legal parent.¹²⁸ In these scenarios, since at least one of the intended parents will not automatically gain legal parenthood, they must undergo an adoption process to obtain parental responsibility.¹²⁹

Similarly, the Ontarian AFAEA outlines the regulations for surrogacy agreements, which are considered a specific type of pre-conception parentage agreement in the Ontario province. For surrogacy agreements, section 10(1) establishes that a written contract must be established between the surrogate and up to four intended parents before conception where the surrogate agrees not to be a parent of the child, and intended parents agree to be recognized as parents. The surrogate and the intended parents must receive independent legal advice, and conception must occur through assisted reproduction (section 10(2)). The surrogate must provide written consent to relinquish parenthood at least seven days after the child’s birth. Until then, the surrogate and intended parents share parental responsibilities (sections 10(3), (4) and (5)). Surrogacy agreements are legally unenforceable but can serve as evidence of the parties’ intentions (section 10 (9)).

If the surrogate fails to provide consent due to death, incapacity, being unlocatable/untraceable, or refusal, any party can apply to the court for a declaration of legal parenthood, with the child’s best interests as the paramount consideration (section 10(6)). This could lead to situations where both the surrogate and the intended parents are legally recognized as the child’s parents, requiring the court to determine the custody arrangement based on the child’s best interests.¹³⁰

From the different possibilities, a system that confers legal parenthood to the intended parent(s) at birth with the possibility of post-birth revocation of the surrogate within a time limit seems to be the most balanced, given that it allows to safeguard the rights of all parties.¹³¹ Portugal appears to follow this approach, as art. 8.7 of the LPMA requires the CNPMA to supervise and validate the agreement between the surrogate and the intended parent(s) before fertilization. This system ensures that intended parents cannot avoid their responsibilities, even if the outcome is not as expected, while still allowing the surrogate to claim motherhood (art. 8.10 LPMA). However, the legal transfer of parenthood seems to be suspended until the surrogate hands over the child within 20 days after birth. This raises the question of how to resolve situations where both the surrogate and the intended parents wish to assume parenthood of the child.

3. Legal parenthood after the surrogate’s revocation

The fundamental controversy of the current regulation concerns legal parenthood when the surrogate revokes their consent and decides to be the mother of the child, while the intended parent(s) also wish to parent the newborn. South Africa has detailed regulations specifying who holds legal parenthood in such cases,¹³² but Portugal lacks similar provisions. Existing studies on surrogate mothers’ experiences indicate that cases where a surrogate wishes to keep the baby are rare.¹³³ Nonetheless, these odd cases could present an opportunity to explore special parenthood rules for this regime within the Portuguese legal system.¹³⁴

When Judgment No. 225/2018 was issued, several Portuguese authors examined how parenthood should be determined in surrogacy cases where the surrogate revokes consent after birth. Joaquim de Sousa Ribeiro noted that, although the initial aim of the surrogacy regime was to separate motherhood from the act of giving birth,¹³⁵ the Constitutional Court’s ruling rendered this goal unattainable.¹³⁶ Instead, it led the Portuguese legislature to adopt a ‘middle-ground solution’ where this separation would only occur after the birth and once the surrogate relinquishes the child to the intended parents.¹³⁷ Ribeiro and Rute Teixeira Pedro have argued that until this handover, the legal establishment of parenthood is suspended,¹³⁸ resulting in a decision that either favours the surrogate or the intended parents, potentially disadvantaging one party despite possible palliative measures like visitation rights.¹³⁹ In the judgement, the Constitutional Court stated that the final determination of parenthood in revocation cases should be judicial, allowing for case-by-case evaluation of all factors.¹⁴⁰ Ribeiro, Pedro, Diana Sofia Araújo Coutinho, and Rafael Vale e Reis argue that this approach introduces uncertainty and question the effectiveness of judicial decisions in resolving such parental claims.¹⁴¹ The revocation of the surrogate’s consent would result in the application of the general parenthood criteria outlined in the Civil Code. Therefore, the surrogate would be legally recognized as the mother by default,¹⁴² and the beneficiaries would need to claim the child’s parenthood in court.¹⁴³ However, this process may fail to adequately protect the surrogate’s right to personal development if parenthood is ultimately granted to the intended parent(s), and vice versa.¹⁴⁴

The conflicts highlighted by the authors suggest that a case-by-case judicial resolution may not provide the needed certainty on legal parent-child relationships for those using this reproductive method. Instead of relying on the default Civil Code rules and judicial adjustments, the development of specific parenthood regulations for surrogacy would more easily lead to a scenario where the rights and duties of all the parties involved are predictable and respected. Such rules would enhance legal certainty and reduce the potential for litigation.¹⁴⁵ However, as anticipated by the doctrine, such a regime must always ensure the best interests of the child.¹⁴⁶

The Portuguese regulation of parenthood is characterized as ‘biological’, as fatherhood is generally determined by genetic connection, while motherhood is established through the act of giving birth.¹⁴⁷ However, the principles of ‘biological truth’ and mater semper certa est have been criticized in recent times for being too rigid and not up-to-date with present realities.¹⁴⁸ Guilherme de Oliveira, Pedro, Coutinho, and Pinheiro emphasize that surrogacy and ARTs challenge traditional principles by dividing motherhood into three distinct components: gestational, genetic, and socio-affective (or intentional), while fatherhood can similarly be categorized into the latter two types.¹⁴⁹

Authors tend to present arguments both for and against assigning legal parenthood to either the gestational parent or the genetic and intentional parent(s) when surrogates revoke consent, treating these decisions as mutually exclusive.¹⁵⁰ However, if we aim to respect the fundamental rights of both the surrogate and the intended parent(s), grounded in the biological truth and mater semper certa est principles, excluding anyone as a legal parent in the Portuguese regime becomes difficult to justify.¹⁵¹ Both genetic contribution and gestation are essential to reproduction, and in this case, they would be coupled with a shared intent to parent the newborn. To protect the interests of all parties involved, a third way tends to be overlooked by the Portuguese doctrine: Portugal could consider recognizing the parental project of both parties, allowing for the legal parenthood of the surrogate and the intended parent(s) simultaneously.

Thus, when a surrogate revokes consent and retains parenthood and there is only one intended parent, the most coherent solution would be to register both the surrogate and the intended parent as legal parents of the child,¹⁵² similar to the situation of a child born after sexual reproduction to parents who separate before birth or who were never in a relationship.¹⁵³ In such cases, the court would need to determine the custody arrangement that best serves the child’s interests, and complications should not arise since the intended parent will necessarily be genetically linked to the newborn.¹⁵⁴

However, more difficulties arise when the surrogate revokes consent and retains legal parenthood, but there are also two intended parents deemed suitable by the CNPMA to be legal parents. According to the LPMA, at least one intended parent must be genetically linked to the baby, if not both. This could result in a scenario where three individuals are involved in the reproduction: an egg donor, a sperm donor, and the gestational carrier. In this scenario, if legal parenthood was assigned by default under the Civil Code—granting maternal rights to the surrogate and paternal rights to the intended father who provided sperm—the intended parent who provided the egg would be unfairly relegated to the role of a mere donor, contrary to their original intent. This is because the egg donation would have been made with the expectation that their legal parenthood would eventually be recognized. Thus, this solution would discriminate against the female intended parent compared to their male counterpart.¹⁵⁵

In Parecer 126/CNECV/2023, the CNECV stated that excluding any of the intended parents from legal parenthood when the surrogate revokes consent would lack justification since they consented to the parental project.¹⁵⁶ In a public version of the subsequently vetoed Decreto Lei 126/XXXIII/2023, it was already deemed essential to clarify that, in cases of consent revocation where the surrogate assumes their own parental project, the beneficiaries were to be still considered the child’s parents (arts. 20.1 and 20.2). Conversely, it was clarified that the spouse of the surrogate, or the person with whom lives in a marital-like relationship, cannot be considered the parent of the child born through surrogacy, as they would not have been part of the surrogacy agreement and would not have consented to the ART procedure (art. 20.3). Apparently, this version of the regulatory decree went even further, by including as legal parent the intended parent within a couple who did not contribute with genetic material. This aligns with recent views on parenthood in the context of surrogacy, where socio-affectivity is considered a preferable criterion over strict understandings of the biological truth.¹⁵⁷ This solution, although at odds with the previous principles, would be reasonable given that would ensure the legal recognition of the parent–child relationship of those who consented to the technique and are acting as such.¹⁵⁸

In 2016, de Oliveira, after analyzing how other jurisdictions were embracing multi-parenthood through court rulings involving three individuals, asserted that the Portuguese legal system was well-equipped to adapt to evolving parenthood rules, potentially leading to the recognition of multi-parenthood.¹⁵⁹ Given the current state of Portuguese surrogacy following the Constitutional Court’s rulings, it appears that the time may have come to explore the implementation of multi-parenthood regulations to solve the block in which the existing regime finds itself in.

Moreover, as seen in the Ontarian case, multi-parenthood within surrogacy law is already a reality in some jurisdictions, demonstrating the technical viability of this solution.¹⁶⁰ This type of regime would be most suitable for Portugal, given the configuration of its current surrogacy laws. Ensuring the rights of all parties involved could be achieved by treating the surrogacy contract as a pre-birth co-parenting agreement among two or three people, where the gestational person retains the right to relinquish motherhood up until 20 days after birth.¹⁶¹ In this approach, the intended parent(s) would be recognized as legal parent(s) at birth, while the surrogate would have the option to either remain a legal parent or be removed from that status at the time of registration.¹⁶² This model would avoid the litigation that the Ontarian regulation mandates when surrogates revoke consent and would provide greater certainty in such scenarios. However, this approach would require the CNPMA to prepare both the surrogate and the intended parent(s) from the outset for the possibility of sharing parenthood of the newborn. Agreeing to such a scenario could serve as a criterion for determining the suitability of each party for their respective roles.

Also, regardless of any pre-birth preparations and possible agreements on parental responsibility,¹⁶³ in cases where both the surrogate and a single intended parent wish to parent the child, or in cases involving three legal parents, the court should determine the custody arrangement that best serves the child’s interests.¹⁶⁴ The most challenging scenario would be a family breakdown within the couple, resulting in the child having three different households. If the court determines that shared custody among three individuals is not in the child’s best interest,¹⁶⁵ a possible solution could involve one or two intended parents receiving limited parental responsibility,¹⁶⁶ such as visitation rights and less decision-making power, while the other(s) holds primary custody and responsibility.¹⁶⁷ Despite this potential outcome of an uneven division of parental responsibility, legal parenthood would be shared among the three individuals, ensuring that no single parental project takes entire precedence over the other(s).

Although this proposal may face scepticism regarding its impact on the child’s best interests,¹⁶⁸ there is evidence of several positive effects associated with tri-parenthood. In cases where triple legal parenthood is not recognized, the surrogate may still be legally acknowledged as the mother and the sperm donor as the father. In such scenarios, the egg donor or intentional parent would function as a de facto parent whenever the child is in the custody of the legal father. Legally recognizing a parent-child relationship that already exists in the socio-affective realm is beneficial,¹⁶⁹ as it provides stability in situations such as family breakdown or the death of the other legal parent. Without this legal recognition, the egg donor or intentional parent would have to litigate to secure parental rights, facing a significant burden in having to prove their suitability to the court.¹⁷⁰ This forced separation from a child with whom they likely have a strong bond could be detrimental to the child’s well-being.¹⁷¹ This situation is particularly pressing for intended parents in same-sex female couples, as they would have to litigate right after birth in order to achieve any legal right in regards of the child.¹⁷² Furthermore, the establishment of three legal parents implies that the child will be supported in the broad sense of the term by three adults, which may strengthen their well-being.¹⁷³

Also, even if the Portuguese legislature does not adopt this proposal, judicial decisions could still lead to the recognition of multi-parenthood. In light of this possibility, it would be beneficial to establish clear legal provisions from the outset, ensuring certainty for all parties involved regarding the parent–child relationships under this regime. Such clarity would help balance the best interests of the child, the surrogate, and the intended parent(s).

Finally, it would be advantageous to have a clearly defined norm regarding cases where multiple babies are born through a single surrogacy.¹⁷⁴ In the absence of such a rule, it remains unclear whether the surrogate could revoke consent for one baby while maintaining it for the other(s). The Act consistently refers to a single child, but it would be useful to specify that revocation must apply to all children born through the surrogacy process. Otherwise, there could be scenarios where one sibling has an additional parent compared to the other(s), which might lead their siblings to feel neglected. Establishing a clear rule would help prevent potential controversies in such cases. Another option could be to limit the number of embryos transferred to the surrogate, thereby preventing multiple pregnancies and eliminating the need for further clarification in this regard.¹⁷⁵

IV. Conclusions

The relationship between Portugal and parenthood through ARTs has been a difficult one since its appearance in the late 20th century, with surrogacy exemplifying this complexity. Despite its approval eight years ago, altruistic surrogacy has faced implementation issues due to unconstitutionality judgements and presidential vetoes, reflecting legislative difficulties in achieving consensus and technical precision. The current challenges include the CNPMA’s lack of resources and a clear roadmap, and unresolved legal clarity regarding surrogate consent revocation and parent-child relationships. The comparative study of surrogacy regulations in the UK, South Africa, and Ontario has highlighted areas needing improvement in the Portuguese system. These include addressing surrogate consent revocation scenarios, inconsistencies with trans-inclusive laws, and the overly restrictive requirements to become intended parents. Recommendations include expanding the definition of infertility, the use of gender-neutral terms for surrogates, and establishing legal parenthood in favour of both the surrogate and the intended parent(s) in cases where the former revokes consent.

These proposed solutions aim to take into consideration all parties involved and minimize litigation, thereby providing a pathway toward a more robust and equitable surrogacy framework in Portugal. However, the turbulent trajectory of surrogacy in the country demonstrates the inherent controversy in addressing this bioethical issue. It is crucial that, once the most critical legal problems are addressed, policymakers prioritize the implementation of the policy by providing the CNPMA with adequate resources and clear guidelines to perform its duties effectively. Significant time and assets have been invested in tailoring this regime, and while taking thorough precautions before implementation is both valuable and necessary, further enhancements will require real-life application and experiences to evaluate and refine the current framework. Moving forward with implementation is essential for the development of a just and effective surrogacy system in Portugal.

Footnotes

Acknowledgements

I would like to express my gratitude to Nausica Palazzo for hosting me during the spring semester of 2024 at the Centre for the Study of Gender, Family, and the Law at the NOVA School of Law, Universidade NOVA de Lisboa. My time there was crucial for the development of this article. Special thanks to Ana Cansado and Constança Mota for their initial insights on surrogacy issues in Portugal. I am also grateful for the critical feedback and encouragement from my thesis supervisor, Esther Farnós Amorós, my research group’s PI, Josep Ferrer Riba, and my former Public Policy professors, Mar Coll Planell and Andrea Noferini. Finally, I would like to thank the anonymous IJLPF referees for their constructive suggestions.

Funding

Funding support for this article was provided by the the Ministry of Science and Innovation of the Government of Spain (Research project ‘New developments on self-determination at personal and family levels: from status to self-regulation’ [PID2021-123985NB-I00], led by Josep Ferrer Riba).

Conflict of interest statement. None declared.