SURROGACY PROCEEDINGS IN GREECE
after the implementation of Law 4272/2014
Surrogacy in Greece is becoming an increasingly popular option for both married, unmarried couples and single women as well. As a matter of fact, Greece is one of the few jurisdictions in the European Union that regulated surrogacy, having adopted a favorable and lenient legal framework, permitting surrogacy for heterosexual couples and single women, aiming to enhance incoming medical cases from abroad to Greek fertility clinics.
The Greek legislative framework for surrogacy is deemed to be one of the most complete and comprehensive worldwide including thorough and sufficient provisions oriented towards a smooth outcome of surrogacy cases.
Surrogacy is stipulated and permitted by Greek Law already since 2002. Especially after the implementation of law 4272/2014 the prerequisite of permanent stay in Greece, as a criterion for eligibility, has now been abolished, thus allowing non-Greek Intended Parents to legally apply for surrogacy.
Video on Surrogacy Law in Greece
Legal framework (pursuant to Art. 1458 et seq.CC, L. 3089/2002, l. 3305/2005 & L.4272/2014).
On 19.12.2002 Law 3089/2002 re “Medical assistance in human reproduction” was adopted by the Greek Parliament as a part of a major reform of the Family Law Section of the Greek Civil Code (GCC), which amended the relevant articles (1455-1460), introducing, amongst other provisions, surrogacy motherhood.
In the light of the above, surrogacy is currently regulated by the Art. 1458 et seq. of the Greek Civil Code (GCC) as amended by Law 3089/2002, Law 3305/2005 and by the relatively recently stipulated Law 4272/2014, which permits exclusively altruistic gestational surrogacy. Supplementary provisions have been established as well by the Code of Conduct for Medically Assisted Reproduction (Decision No 73/24.01.2017 published on Government Gazette 293/07.02.2107). The process is open to heterosexual couples (married, unmarried or in a legal partnership) and single women.
Pursuant to Article 1458 GCC, as applicable today: “The transfer of fertilized ova into the body of another woman provided that the ova are not originated by the latter, and the gestation by her shall be a permitted with judicial authorization granted before the transfer (of the ova), as long as there is a written and non-related to financial consideration agreement between the persons wishing to have a child and the surrogate mother and in case the latter is married, of her spouse as well. The judicial authorization is provided after the filing of an application by the woman willing to have a child, as long as it is proved that the latter is medically unable to gestate and that the surrogate mother is in view of her state of health able to gestate”.
The amendment implemented by the Law 4272/2014
Law 4272/2014 induced an innovation for surrogacy in Greece.
Pursuant to the old regime (art. 8 of Law 3089/2002) one of the prerequisites for granting the judicial authorization for surrogacy was the fact that both the surrogate mother and the indented parents had to be obligatory Greek citizens or permanent residents of Greece.
Art. 17 of L. 4272/2014 amended the old regime by providing that: “Articles 1458 and 1464 of the Civil Code are applicable only in the case that the applicant or the woman who will bear the child is a permanent or temporary resident of Greece.”
Intended Parents – Applicants
According to the letter of the law, intended parents could be a married heterosexual couple or a heterosexual couple living in a civil partnership, as well as a single woman. Greek Law does not include a special provision concerning single men.
It remains disputable in the Greek legal theory & jurisprudence whether the lack of provisions regarding single men consists a gap in the law or if the Greek legislator consciously left this area unregulated, excluding thus the contingency for a single man to apply for surrogacy.
As regards to the age of the intended parents, Greek Legislation (L. 3305/2005 art. 4 par. 1 and Civil Code art. 1455 par. 1) sets the 50th year of life for the commissioning mother as the deadline to apply for surrogacy due to the fact that according to the medical science this is considered to be normally the limit of the woman’s fertility. Thus, the hearing date before the Court is the key date to judge the eligibility of the 50year threshold.
Moreover, pursuant to Art. 13 of L. 3305/2005 intended parents are to be subjected to the medical tests for the detection of human immunodeficiency viruses (HIV1 & HIV2), Hepatitis B and C and syphilis, as well as to undergo thorough psychological evaluation.
The Code of Conduct for Medically Assisted Reproduction (Decision No 73/24.01.2017 published on Government Gazette 293/07.02.2107) introduced accrording Art. 9 Art. 1 three preliminary requirements which have to be met regarding the surrogate mother. More specifically, the surrogate mother:
- should be between 25 – 45 years old,
- should have already give birth to at least one child of her own
- and should not have done more than two Caesarian sections.
Furthermore, pursuant to Art. 13 of L. 3305/2005, it was clarified that the surrogate woman is to be subjected to the medical tests for the detection of human immunodeficiency viruses (HIV1 & HIV2), Hepatitis B and C and syphilis, as well as to undergo thorough psychological evaluation.
Surrogacy is permitted under the requirement of issuance of a Judgment by the district court where the intended parents or the surrogate mother reside, temporarily in Greece. The commissioning mother should file an application before the competent court asking the permission to proceed with surrogacy in Greece. The insemination procedure can only take place after the publication of the relevant Judgment. The court examines the written surrogacy contract, the IPs’ declaration of a medical need for surrogacy, and the altruistic nature of the agreement.
Duration of the procedure
Although the law sets specific timeframes for a court decision to be issued, in practice this always lies on the judge’s discretion. Usually the judgement is issued between 30 to 60 days after the hearing date.
Once issued, then decision must be served to all the involved parties: the husband of the commissioning mother (if any), the surrogate woman (and her husband, if any) & the Public Prosecutor. Any of these persons is entitled to contest the court decision within 30 days after its service. If no one will do so within this deadline, the court decision is rendered irrevocable and only then the involved parties are allowed to proceed with the insemination (the transfer of oocytes in the surrogate’s uterus).
Specific terms under which the court authorization to surrogacy is granted
The court will issue the authorization to surrogacy under the following conditions:
(a) The commissioning mother should prove that she is unable to carry a child to term due to medical reasons.
(b) The commissioning mother should not exceed the age of fifty (50).
(c) The surrogate mother should prove to the court that she is medically and mentally healthy.
(d) The parties should submit their written agreement to the court.
(e) The agreement could provide for compensation of expenses. The payment for services and any kind of financial benefit is strictly prohibited.
(f) In case that the surrogate mother is married, her husband should also consent in writing by signing the written agreement.
(g) The fertilized ova should not originate from the surrogate mother.
Surrogacy motherhood for exclusively altruistic purposes
Furthermore, another salient requirement is stipulated under the Art. 13 of Law 3305/2005 (“Enforcement of Medically Assisted Reproduction”) pursuant to which the surrogacy agreement, which is to be concluded by and between the commissioning parents and the surrogate woman, must not contain any financial benefit for the surrogate. The Law clarified that the following do not constitute financial benefit:
- The payment for any expenses necessary for the artificial insemination procedure, the pregnancy, the delivery and the puerperium.
- The restitution for any damage of the surrogate mother due to work absenteeism or the remuneration for any payments for paid employment she forfeited for the purpose of insemination, pregnancy, delivery and puerperium.”
Establishment of the legal relationship with the Parents
Intended parents are automatically recognized as the child’s parents from birth. According to Art. 1464 of GCC “in case of artificial insemination where there is a surrogate mother, provided that the conditions of art. 1458 have been met, as a mother of the child is presumed the commissioning mother who obtained the court’s authorization”. If the commissioning mother is married, then parents of the child are presumed the commissioning mother and her husband.
The obstetric hospital follows the typical procedure for issuing the birth certificate (recording of course that this is a case of surrogacy) and the social parents should submit the certificate to the civil registrar and declare the birth of their child in ten days (as any other couple). They should also submit to the registrar office a copy of the judicial decision that gave to the commissioning mother the license to have a child with the help of the surrogate mother.
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Athens, April 2020
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