In Portugal, Assembly of the Republic MPs have referred constitutionality issues concerning the law on surrogacy adopted in July 2016 to the Constitutional Court.
In its responses on surrogacy, the Court considered that, as defined in Portuguese legislation as an exceptional method of reproduction subject to an independent agreement between the parties outlined in a free service contract authorised by the administration, it did not violate the dignity of the pregnant woman, that of the unborn child or the State’s duty to ensure the protection of children.
However, on certain specific aspects, the Court found that the fundamental principles and rights enshrined in the Constitution were compromised.
Firstly, it denounces the excessive vagueness of the law regarding the limits for establishing the consent of persons affected by a surrogacy contract, as well as the framework of permissible restrictions included in the clauses of the contract that are imposed on the surrogate mother. However, these limits are essential for establishing the rules of conduct of beneficiaries and also for setting the criteria for authorisation by the National Council for Medically Assisted Reproduction. Apart from sufficiently precise and verifiable material criteria, the law is difficult to apply.
Pregnant women, deprived of the option to withdraw their consent at the start of the surrogacy process, are excluded from fully exercising their fundamental right to develop their personality. This right is nevertheless essential for the constitutional legitimacy of the contract, interpreted according to the principle of human dignity and the right to have a family.
Secondly, the legal uncertainty associated with the invalidation clause of the surrogacy contract weakens the status of the person born through surrogacy. This regime prevents consolidation of the legal positions of the parties: parents, son or daughter.
With regard to donor anonymity, the Court held that it was important to note the increasing importance attached to knowing one’s own origins. In addition, anonymity in cases of heterologous procreation and that of the pregnant woman in cases of surrogacy require constitutional censorship because it imposes an unnecessary restriction on the rights to personal identity and the personality development of persons born through surrogacy using gamete or embryo donation, including cases of gestational surrogacy.
The paternity search is subject to exemption because even if the donor’s identity is known, he cannot be considered as the child’s father. Therefore, as such, this exemption does not violate constitutional parameters.
The elimination of standards declared unconstitutional would ensure that all contracts already favourably evaluated by the Council for Medically Assisted Reproduction would be considered unauthorised and subject to legal repercussions, including the legitimacy of therapeutic procedures and determination of the parenthood of children born as a result of said procedures. The Court also unanimously decided, on the basis of the need for legal certainty and the State’s duty to protect young children, to limit the effects of its decision, in order to maintain situations in which therapeutic processes of medically assisted reproduction have already been initiated in surrogacy contracts previously authorised by the National Council for Medically Assisted Reproduction. In such cases, only complaints with reference to invalidity may be applied.