Surrogacy is permitted in Greece, however it is subject to strict conditions and the relevant licence is granted by Court order.
Researches have documented that due to the everyday pressure and stressful living conditions, health and sterility problems in both sexes. As a result, many couples suffer psychological and physical distress and are finally unable to have a child. Medically assisted reproduction, via the surrogacy procedure, is a valuable solution for couples unable to naturally reproduce, due to health problems.
Medically assisted reproduction via the surrogacy procedure enables a couple to have a child which will be a biological descendant of that couple, even if the female partner is unable to gestate.
Surrogacy is permitted in Greece, while on the contrary it is prohibited in other countries worldwide even within the European Union, as it is still considered a “taboo” issue. In our country, the right to have a child through surrogacy is granted by a court decision and the proceedings in general are subject to strict conditions. We will attempt below to explain the procedure a mother or the couple wishing to have a child must follow via surrogacy and we will document the main conditions prescribed by Greek legislation for surrogacy.
1. What is surrogacy?
Surrogacy is the method of artificial reproduction, permitted by Court order in which a woman gestates and labours (pregnant or gestating or surrogate mother) following in vitro fertilisation and transfer of fertilised eggs with the use of eggs not belonging to the surrogate mother on behalf of another woman who wishes to have a child but is unable to gestate due to medical reasons.
2. What is the legal framework in Greece?
The applicable legal framework in Greece is founded on the following:
(a) The Greek Constitution in conjunction with the European Convention on Human Rights and Biomedicine of the European Council which was executed in Oviedo, Spain in 1997 and was ratified in Greece by Law 2619/1998 (Gov. Gazette A 132). More specifically, the Constitution defines the reproduction right in article 5, par. 1:
“Anyone is entitled to freely develop its personality and participate in the social, economic and political life of the Country, provided that he/she does not offend other people’s rights and does not violate the Constitution or morals”.
(b) The provision of article 2 par. 1(b) of Law 3305/2005 (Gov. Gazette Α 17), “Application of Medically Assisted Reproduction (Assisted Reproductive Technology)” where it is defined that the Medically Assisted Reproduction includes inter alia the in vitro fertilisation and the transfer of fertilised eggs.
(c) Article 1458 of the Civil Code which defines:
“Transfer of fertilised eggs in the body of another woman, with the said eggs not belonging to her and gestation by that woman is permitted by court order which is granted before the transfer, provided that a written agreement without any consideration has been concluded between the persons seeking to have a child and the woman who will gestate (host) as well as her spouse, if she is married. Court permission is granted following the petition of the woman wishing to have a child, if it is proven that she is medically unable to gestate and that the woman offering herself for gestation is, in view of her health condition, eligible for gestation”.
3. What are the general principles governing Medically Assisted Reproduction?
The provision of article 1 of Law 3305/2005 (Gov. Gazette Α 17, “Application of Medically Assisted Reproduction (Assisted Reproductive Technology)” expressly defines that:
“1. The Medically Assisted Reproduction (MAR) methods apply in a manner that ensures respect to the liberty of a person and its personality right and the satisfaction of his/her wish to have descendants, based on the facts in medicine and biology as well as the bioethics principles.
2. During the application of the above methods, the interest of the child to be born must be primarily taken into account”.
The above provision stresses the value of the child to be born and is in conformity with the main principles for the protection of children’s rights, pursuant to article 3 of the International Convention on the Rights of the Child (Law 2101/1992) and article 24 of the Chart of Fundamental Rights of the European Union.
4. What is the procedure for surrogacy?
In order for the fertilised eggs of another woman to be transferred to the gestating/surrogate mother, a court permission is required which is granted to the applicant seeking to have a child prior to the transfer thereof, if all conditions dictated by the law have been met. The court permission is granted by the competent in terms of object and jurisdiction Court in the voluntary jurisdiction procedure. The Court thoroughly examines if all conditions of Greek Law are met.
5. What are the prerequisites for the granting of court permission for surrogacy?
- The applicant wishing to have a child by means of surrogacy must provenly be unable to gestate for medical reasons. Moreover, she must be in a reproductive age and not over fifty (50) years of age.
- Medical exams for HIV, HIV2, Hepatitis Β and C, as well as Syphilis (RPR) are required both for the surrogate mother and for the couple seeking to have a child.
- The surrogate mother must be eligible for gestation in terms of her health condition and free of any mental or neurological disease.
- A written agreement without any consideration is concluded between the persons wishing to have a child and the surrogate mother, as well as her spouse, if she is married.
6. Is a financial consideration allowed?
No financial consideration is allowed. However, the payment of the expenses required for the onset of the pregnancy, during the course and for the conclusion of the pregnancy (labour) as well as during the postpartum period does not constitute a financial consideration, as well as the indemnification for any actual loss of the gestating woman due to her absence from work and fees for waged worked which she was deprived due to her absence in order to conceive, gestate, labour as well as during the postpartum period.
7. What are the legal provisions regarding the mother of a child born by surrogacy?
As regards the kinship established via the surrogacy procedure, article 1464 of the Civil Code expressly defines that the mother of the child to be born is the one who applied for and was granted the court permission, i.e. the woman wishing to have a child but is unable due to medical reasons, and not the gestating/surrogate mother.
8. What is the regime in force for Personal Data Protection?
As regards the hearing of the petition and the granting of the permit for surrogacy, the Court may, according to article 799 of the Code of Civil Procedure, order a closed hearing if it rules that the publicity of the case will impair the morals or if there are special reasons for the protection of the privacy or the families of the parties.
The name of the surrogate mother will not be written on the birth certificate. The birth certificate names the couple wishing to have a child as the lawful parents thereof.
If you have any questions regarding any legal aspects of surrogacy, the associates of VAP LAW OFFICES are at your disposal at [email protected].
Note: It is pointed out that the above outline of provisions is suggestive and summarizing and aims at providing a quick update in relation to the legal framework. Any subjection of your company to the above provisions and the conditions of this subjection constitute the object of a more complete analysis for which the provision of specialized legal advices is required. The contents of this newsletter do not constitute legal or tax advice and cannot be used as such. In case you require advice for your personal needs, please do not hesitate to contact us. Reproduction and translation for non-commercial purposes of this newsletter is permitted, provided that reference of the source is made and the editor (VAP LAW OFFICES) is informed and a copy is communicated to it ([email protected]).