Subject matter: The Constitutional Court examined in its Ruling no. 225/2018 a request for ex post abstract review of constitutionality made by a Group of Deputies to the Assembly of the Republic concerning: (i) the insertion in the Law on Medically Assisted Procreation (Law of the MAP) of a number of norms with regard to surrogate gestation; (II) the rule of anonymity of donors (and that of the surrogate mother) vis-à-vis those born as a result of the MAP methods; and (iii) the rule that waivers the ex-officio investigation of the paternity of a child whose mother, regardless of her marital status and sexual orientation, has had recourse to MAP techniques Keywords: Data, personal, protection; Family life, right; Family protection; Family, 'peace of the family' ; Family, protection; Family, protection, constitutional; Fundamental rights; Fundamental right, conflict; Fundamental right, exercise; Fundamental rights not open to restriction, limitation; Human dignity, violation; Identity, right; |
RULING No. 225/2018
Case no. 95/17
Plenary
Rapporteur: Justice Pedro Machete
Sitting in Plenary, the Constitutional Court hereby rules as follows:
I. Report
1. Under the terms of Article 281(1)(a) and (2)(f) of the Constitution of the Portuguese Republic (CRP), a group of thirty Members of the Assembly of the Republic (Parliament) have asked the Court to issue a declaration of unconstitutionality with generally binding force in relation to the following precepts contained in Law no. 32/2006 of 26 July 2006 (The Law governing Medically Assisted Procreation – hereinafter “LPMA”), with the text given to it by Laws nos. 17/2016 of 20 June 2016, and 25/2016 of 22 August 2016:
a) Paragraphs (1) to (12) of Article 8, entitled “Gestational surrogacy”, for breach of the principle of the dignity of the human person [Articles 1 and 67(2)(e), CRP], of the state’s duty to protect childhood [Article 69(1), CRP], of the principle of equality (Article 13, CRP), and of the principle of proportionality [Article 18(2), CRP]; and consequently, “the norms or part of the [LPMA] norms” that refer to gestational surrogacy [Articles 2(2), 3(1), 5(1), 14(5) and (6), 15(1) and (5), 16(1), 30(2)(p), 34, 39, and 44(1)(b)].
b) Paragraphs (1) and (4) of Article 15, entitled “Confidentiality”, taken in conjunction with Articles 10(1) and (2) and 19(1), for breach of the rights to personal identity, to the development of personality and to genetic identity [Article 26(1) and (3), CRP], of the principle of the dignity of the human person [Articles 1 and 67(2)(e), CRP], of the principle of equality (Article 13, CRP), and of the principle of proportionality [Article 18(2), CRP].
c) Paragraph (3) of Article 20, entitled “Establishing parentage”, for breach of the rights to personal identity, to the development of personality and to genetic identity [Article 26(1) and (3), CRP], of the principle of the dignity of the human person [Articles 1 and 67(2)(e), CRP], of the principle of equality (Article 13, CRP), and of the principle of proportionality [Article 18(2), CRP].
After analysing the main changes to the LPMA made by Law no. 17/2016 (with regard to matters concerning medically assisted procreation) and Law no. 25/2016 (with regard to matters concerning gestational surrogacy) respectively, the petitioners reflect on the meaning and scope thereof:
“Article 1 of the Universal Declaration on the Human Genome and Human Rights of 11 November 1997, which was drafted by UNESCO’s International Bioethics Committee, states that ‘The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity’.
The only express reference to medically assisted procreation in the Constitution of the Portuguese Republic appears in Article 67(2)(e): [‘The state is particularly charged with (...) Regulating assisted procreation in such a way as to safeguard the dignity of the human person’]. This precept was added to the then text of the CRP by Constitutional Law no. 1/97 of 20 September 1997, thereby requiring the state to regulate medically assisted procreation and subjecting that regulation to a normative reference that is binding on the ordinary legislator, which must regulate the matter in strict compliance with the value ‘safeguarding the dignity of the human person’:
‘In referring [the question] to the dignity of the human person, Article 67(2)(e) of the Constitution of the Republic thus primarily seeks to safeguard the rights of the persons who may be most directly affected by the application of assisted procreation techniques, especially the right to physical and moral integrity (Article 25), the right to personal identity, genetic identity, the development of personality and the protection of the privacy of personal and family life (Article 26), the right to form a family (Article 36), and also the right to health (Article 64). Without disregarding, on this level, the fact that the subjective universe protected by the norm includes not only the beneficiaries of and the persons involved as participants in the process, but also the persons who are born following the application of medically assisted procreation techniques.’ [Ruling no. 101/2009]
Echoing this perspective on the question, the National Council of Ethics for the Life Sciences (CNECV) points to the fact that ‘... The decision on the use of MAP techniques must respect the primacy of the human being – a fundamental principle that rejects the instrumentalisation of the human person, and enshrines the dignity of the human being and the ensuing protection of his/her rights, under any circumstances, with regard to the applications of science and medical technologies (Convention on Human Rights and Biomedicine). Within the scope of the application of MAP techniques, extra value should be attached to the condition of the unborn child who, by his/her nature and due to his/her vulnerability, is the person who most needs protection. One must also bear in mind the child’s rights to his/her personal identity, to know his/her parental origins, and to know about any risks to his/her health that may be associated with the technological processes used in his/her gestation’ [Opinion no. 87/CNECV/2016].
Now the truth is that this legislative amendment brought about a ‘change in the paradigm regarding the use of MAP techniques’ – the CNECV’s words – inasmuch as it moved the focus of protection solely onto the woman, disregarding the set of rights which most need to be safeguarded and which the state is under a particular duty to protect: the rights of the child.
While acknowledging that both the right to form a family and to have children and the right to know one’s identity – including one’s genetic identity – are constitutionally protected, whenever these two rights are placed in opposition, it is the former that should give way and not the contrary, as is the case in this Law.
We are thus witnessing a replacement of the principle of subsidiarity – the application of which is perfectly acceptable, delimited and proportional under the conditions set out thus far – by the principle of complementarity. This substitution is primarily visible in the following changes:
– The principle of beneficence is replaced by the principle of equality before the law (only for some, naturally, in that everyone may have the right to have children, but not all children will have the constitutionally enshrined right to know their personal and genetic identity).
– MAP is no longer regulated as a subsidiary method and becomes an alternative method.
– Access to MAP ceases to be a form of treatment, within a context of infertility or serious illness, and is now considered to be a reproductive right pertaining to each and any woman who desires it, because she wants it, regardless of her civil status.
– The match between social parentage and biological parentage is no longer afforded a privileged status, with the establishment of a legal solution that disproportionately favours the former.
It is precisely the fact that MAP is woman and single-parent centred which reveals the need to pay greater attention to the rights of the unborn child.
In other words, we subscribe to the statements which Council Member RITA LOBO XAVIER made in the aforementioned CNECV Opinion: ‘Nor do I consider it ethically acceptable to cause the interest of the woman who is benefiting from MAP techniques to entirely prevail over the rights of the child who is going to be born, particularly in the case of the possibility of post mortem insemination (…)’.
On the question of gestational surrogacy, the CNECV made clear in Opinion no. 63/CNECV/2012 the conditions it considered should be laid down in any law that subsequently provided for the use of that technique. Those conditions are as follows:
1. In addition to other relevant information, both the gestational surrogate and the beneficiary couple must be fully informed as to the significance and consequences of the surrogate’s (e.g. epigenetic) influence on embryonic and foetal development, which must be made clear to them, and that detailed clarification must be included in the informed consent, which must be given in writing and be signed in good time.
2. It must be possible for the gestational surrogate to revoke the consent at any time until labour begins. In that case, for all social and legal purposes, the child must be deemed the child of the person who gave birth.
3. The contract between the beneficiary couple and the gestational surrogate must include provisions to be complied with in cases in which foetal deformities or illness occur and in the event there is a voluntary termination of the pregnancy.
4. The gestational surrogate and the beneficiary couple must be informed that the future child is fully entitled to know the conditions under which he/she was conceived.
5. The gestational surrogate must not simultaneously be an oocyte donor in the gestation in question.
6. The gestational surrogate must be in good health.
7. The gestational surrogate’s altruistic motivations must be evaluated in advance by a multidisciplinary healthcare team that is not involved in the MAP process.
8. The decisions in relation to any unexpected health events that occur during the gestation (at the foetal or maternal level) must be taken solely by the gestational surrogate with the support of a multidisciplinary healthcare team.
9. It must be up to the beneficiary couple, in conjunction with the gestational surrogate, to decide the form of breastfeeding (in the event of conflict, the beneficiary couple’s choice must prevail).
10. It must be legally unacceptable for there to be an economically subordinate relationship between the parties involved in the gestational surrogacy.
11.The gestational surrogacy contract (to be entered into before the gestation) cannot impose behavioural restrictions on the gestational surrogate (such as conditions regarding diet, clothing, occupation, sex life).
12. At least one member of the possible beneficiary couple must be a gametic progenitor of the embryo that is transferred to the gestational surrogate.
13. The law on this matter and its complementary regulation must obligatorily be reviewed three years after their respective entry into force.
However, in Opinion 87/CNECV/2016 the CNECV did not consider that the initiative presented to it fulfilled the aforementioned minimum conditions which, in its opinion, would be required in order to make it possible to revoke the prohibition on gestational surrogacy.
Within the overall ethical framework applicable to gestational surrogacy, the CNECV drew attention to the fact that, inasmuch as the fundamental difference between gestational surrogacy and the other procreation techniques lies in the use of the body of another woman, who is not the beneficiary, there are still ethical questions at the level of the ‘respect for the surrogate’s dignity, the instrumentalisation of her body, the break in the connection between gestation, maternity and paternity, and the fulfilment of the best interests of the child, before and after birth’ [Opinion no. 87/CNECV/2016].
The CNECV’s concerns can be summed up in the following questions:
– Is the gestational surrogacy contract compatible with the surrogate woman’s rights, namely by protecting her from exploitation?
– Does the gestational surrogacy contract adequately protect the rights of the child that is to be born, in a new reproductive context, in terms of the construction of the child’s personality?
– Is it acceptable for the law to require the fulfilment of a contract which breaks with the biological and emotional bond formed during the child’s intrauterine development, which science has considered indispensable to an appropriate, healthy process of growth and bio/psychosocial development of the child?
– Is it ethically and morally acceptable that the law makes no provision in relation to the child’s filiation in cases where the gestation contract is not fulfilled, with the whole of the issue left to the general regime governing the nullity of contracts? Is it acceptable for this matter not to be regulated in this law (Law no. 25/2016)?
As a result of these and other doubts, the CNECV ended up concluding that the legislative initiatives which gave rise to Law no. 25/2016 of 22 August 2016 not only failed to adequately safeguard the rights of either the future child or the surrogate, but also made no provision for an adequate framework for the gestation contract. In addition to this, they failed to ensure compliance with conditions nos. 1, 2, 3, 8 and 11 as defined in Opinion 63/CNECV/2012.
It is true that before promulgation, the draft law was amended by Parliament at the request of the President of the Republic, whose message precisely referred to the doubts raised in the CNECV’s Opinion. However, in our view, those amendments still do not fully respond to the CNECV’s remarks – the Law does not do so, and the regulations that we are still waiting for will be unable to do so, because many of those remarks are simply impossible to satisfy and the multiple doubts and questions that are still posed do not have an exact, unequivocal and scientifically proven answer, as demanded by the need to defend the best interests of the child and the primacy of human dignity.”
The petitioners then set out the grounds which, in their opinion, justify a positive finding of unconstitutionality in relation to the norms listed in their request to the Court:
“On the breach of the right to personal identity from which there derives a right to know one’s genetic ancestry:
Article 15 of the Law (entitled “Confidentiality”) provides for the anonymity of all third-party donors of genetic material intended to make a woman’s fertilisation possible. The rule is thus that the donor’s identity should not be disclosed to the person who is born via a heterologous assisted reproduction technique, except when there are weighty reasons that are recognised by the decision of a court [see Article 15(4)].
From the constitutional-law point of view, we are thus faced with a conflict between fundamental rights. On the one hand, the right of the person born via MAP to her/his personal identity, which in turn gives rise to a right to know his/her genetic ancestry [Article 26(1) and (3), CRP]; and on the other, the rights to form a family and to the protection of the privacy of personal and family life [respectively provided for in Articles 36(1) and 26(1), CRP].
If we look at the provisions of the Constitution of the Portuguese Republic, we see that the right to personal identity, as a personal right, consists of the following:
‘V – Personal identity is that which characterises each person as an individualised entity who is differentiated from every other person by a given personal life course. In a very broad sense, the right to personal identity encompasses each person’s right to live in concord with themselves, and at the end of the day is an expression of the freedom of conscience projected outwards in certain life choices. The right to personal identity postulates a principle of personal truth. No one should be obliged to live in discord with that which he/she actually is in personal and identitarian terms. The right to personal identity is also linked to the prohibition of discrimination laid down in Article 13(2) of the Constitution, inasmuch as the characteristics identified therein are generally seen as constituent elements of personal identity.
VI – A person’s own genetic identity is one of the essential components of the right to personal identity (...)’ – JORGE MIRANDA and RUI MEDEIROS, Constituição da República Portuguesa Anotada, 2nd Ed. (May 2010), Tome I, p. 609.
Also seen as a personality right, but with a more socialising focus, other authors consider the right to personal identity to be a right to personal historicity consisting of, in particular, the right to know the identity of one’s progenitors:
‘The right to personal historicity refers to the right to know the identity of one’s biological parents (see Constitutional Court Ruling no. 157/05). It can serve as the grounds, for example, for a right to investigate paternity or maternity, even in some cases in which the law appears, prima facie, to preclude the right to bring paternity suits (see Constitutional Court Rulings nos. 456/03, 525/03 and 486/04). Problematic is the issue of whether this necessarily implies a right to know one’s biological parentage – a question that has posed difficulties in the case of the traditional adoption regime, and more recently, in cases of both heterologous artificial insemination and surrogacy. As such, the right to personal identity would truly postulate an interchangeable right to genetic identity’ – GOMES CANOTILHO and VITAL MOREIRA, Constituição da República Portuguesa Anotada, Coimbra Editora, 4th Ed. (2007), Vol. I, p. 463.
In this way, the right to identity encompasses personal historicity, giving its holder the right to know the circumstances in which he/she was conceived and the people who biologically determined his/her existence.
In order to effectively protect personality, the law must protect the right to the truth, the right to know one’s genetic origins, in such a way as to ensure that the human being’s personal identity is, in itself, preserved.
We can thus say [see FÁTIMA GALANTE, A adoção: identidade pessoal e genética, Verbo Jurídico, p. 18] – that ‘... the content of the right to know one’s genetic origins must incorporate the optional ability, which every individual is in principle recognised to possess, to judicially investigate their maternity and paternity, with the goal of achieving a correspondence between legal and biological ties. The legal recognition of that ability must be seen as the key point in the protection afforded to the right, in that its implementation enables the subject to not only gain access to her/his progenitors’ identity, but also to derive all the legal consequences that the legal system attributes to the establishment of parentage. The right to know one’s genetic origins can thus be said to require the ordinary legislator to establish legal solutions that do not constitute excessive obstacles to such an investigation, in turn suggesting the existence of a principle that the right to investigate cannot lapse by prescription – a tendency that is indeed generalised in the legal orders which are close to our own’ (some emphases in the original text; some added by the petitioners).
Along the same lines and specifically with regard to MAP, Jorge Miranda and Rui Medeiros consider that: ‘(The) legal solution that allows the donor’s identity to be revealed when there are ‘weighty reasons’ [for doing so] should in any case be interpreted in accordance with the right to know one’s genetic origins, and cannot legitimise excessive and unjustifiably restrictive interpretations of the possibility of revealing the male or female donor’s identity (…)’.
The right to know one’s genetic origins takes on a substantial importance – as is the case in this Law - when it comes to MAP of a heterologous kind, inasmuch as heterologous insemination now has a much broader field of application, precisely because it no longer possesses a subsidiary nature and, in accordance with Articles 4(3) and 6(1), becomes an alternative method of procreation.
The question which arises is not whether a legal regime that affords total anonymity to the donor is constitutional, but rather whether it is constitutional to establish donor anonymity as a rule and the possibility of knowing one’s identity as an exception. At stake here is the relative weight which the right to personal identity warrants and the importance afforded to it in the regime instituted by the Law, vis a vis the rights to form a family and to the privacy of personal and family life. It is thus important to understand whether or not the restrictions established in the Law respect the principle of proportionality, as derived from Article 18(2) and (3), CRP.
Having said this, we are aware that the MAP Law does not absolutely ban disclosure of a donor’s identity, but instead establishes a rule, which allows for exceptions – see Article 15(4). We are also aware of the fact that, in 2009, when asked to review the constitutionality of Article 15(1) and (4), taken in conjunction with the norms contained in Article 10(1) and (2), the Constitutional Court decided in Ruling no. 101/2009 that they were not unconstitutional. In that case, the Court held that the legislator’s choice to establish a mitigated donor anonymity regime was entirely justified in the light of the need to preserve other constitutionally protected values, such as the right to form a family and the ensuing need to preserve the peace and privacy in and of the family.
The petition’s signatories consider that the ‘change of paradigm’ brought about by Law no. 17/2016 of 20 June 2016 and the broadening of the regime to include ‘gestational surrogacy’ as approved by Law no. 25/2016 of 22 August 2016 have lent new urgency to the question of knowing the genetic identity of children conceived by means of MAP, namely via heterologous insemination. This is due not only to the universal scope of this matter – as everyone could be born with recourse to such techniques – but also to the imperative nature and clarity of the constitutional precept, which is grossly violated and, in general terms, set aside by the Law.
In the case of ‘gestational surrogacy’, there is a situation which deserves to be highlighted and which in our opinion reinforces the argument that the norms in question are unconstitutionally in violation of the right to identity, of the dignity of the human person, and of the requirement to protect childhood. Indeed, while the Law pays particular attention to donors, establishing a mitigated anonymity regime governed by Article 15(1) and (4), it does not afford the same treatment to the ‘gestational surrogate’, with regard to whom the confidentiality and anonymity rule set out in paragraph (1) is absolute and does not permit any exceptions.
The fact is that inasmuch as Article 15(4) only applies to the identity of the donors, and not to that of the ‘gestational surrogate’ with regard to whom the framework outlined in Article 10 is not relevant, we are clearly in the presence of an absolute ban on the access to the identity of any woman who takes on the role of gestational surrogate. This grossly violates the rights to personal and genetic identity provided for in Article 26(1) and (3), CRP, and amounts to a deeply disproportionate and inappropriate solution, in violation of Article 18(2), CRP.
As Fátima Galante rightly points out, based on exactly the same reasons and grounds it is not possible to deny the child’s right to know the identity of the mother who bore him/her in a case of surrogate gestation. In other words, when the woman who bears the child did not provide the oocyte, it appears to us that the individual who was conceived in this way should autonomously be granted the ability to obtain information, not just in relation to the donors (in particular when the latter are third parties), but also – and considering the importance of the relationship which the woman establishes with the foetus during the nine months of pregnancy – with regard to the identity of the woman who bears the child.
In this respect, Antunes Varela says: ‘…between the woman who matures the oocyte supplied by another woman in her uterus and the child who is born from her womb there is a real element that possesses a capital importance in the relationship of parentage – i.e. the embryo’s intrauterine life, the permanent, intense connection between the being who is formed and the human body which gives him/her life inside itself.
The right to know one’s genetic heritage and identity does not configure a weakening of the defence of the right to privacy and to the protection of one’s personal life. We are in the presence of constitutionally enshrined fundamental rights with the same dignity and normative value. Continuing this line of thought, it is therefore necessary to assess the constitutionality of the restrictions in the light of Article 18, CRP.
While the conjugated provisions of Articles 8 and 15 of the MAP Law leave no room for doubt as to the breach of the constitutional precepts on safeguarding the right to identity (we are talking about an absolute prohibition on knowing the identity of the woman who bore the child), the mitigated donor anonymity regime requires more thought, particularly in the light of the constitutional-law arguments set out in Constitutional Court Ruling no. 101/2009.
The right to know one’s genetic identity forms part of the right to identity of the person born as a result of these techniques, of his/her personality and of his/her personal historicity, regardless of the absence of a loving relationship.
According to Stela Barbas, human beings have ‘…. the right to genomic identity. There cannot be two types of people: those who can know their genomic roots and those who can’t’.
Allowing – or allowing as a priority – the child the right to know his/her true genetic and biological identity does not constitute a reduction in or discrimination against legal filiation or any other rights inherent therein: the recognition of one’s genetic or biological origin does not contend with the legally established filiation, in the sense that recognition does not imply any paternal or maternal duty towards the person whose origins are being investigated. The various conflicting fundamental rights are, in fact, respected and safeguarded in a balanced manner, in strict compliance with the constitutional directives. We are talking about mere knowledge, but a knowledge that is fundamental if no one is to be barred from the possibility of knowing their own history and reaffirming their individuality.
Turning to the right to form a family and to the privacy of the personal sphere, the petitioners share the opinion of Justice Benjamim Rodrigues, which is particularly relevant to matters concerning ‘gestational surrogacy’, when he says that ‘while there is no doubt that the Constitution recognises that whoever can have children has the right to do so (Article 68), I do not see that it recognises any fundamental right on the part of those who can only obtain them by means of third-party donation, given that this is not a service which the state can either ask of third parties or directly fulfil’ [dissenting opinion attached to Ruling no. 101/2009].
He goes on to say that ‘… while it is true that the fulfilment of plans to have children falls within the options included in the right to the development of one’s personality, it cannot be ignored that that right is fulfilled by conceiving a person and that it is intolerable for the protection of the person who is born to be subordinated to the rights of whoever decided that he/she should be born, thereby depriving him/her of essential knowledge about the truth of his/her being’.
Specifically on the right to the privacy of the personal sphere – when it is the donor or even the ‘gestational surrogate’ who is at stake – we [the petitioners] also agree with the opinion of Justice Rodrigues when he says that ‘inasmuch as the object of the protection is not a behaviour whose effects are limited to the personal sphere of the donor, or that of the woman who bears the child, but is instead reflected and manifested in the conception of another person, who possesses autonomous rights, one must conclude that that right must not be able to restrict the aforementioned rights of that other person’.
Accompanying the movement in both the Portuguese and the international scientific and doctrinal fields, Portuguese case law is proving increasingly aware of the importance and the growing force of the right to know one’s genetic identity, seen as part of the right to identity.
What is more, the recent amendments to the Adoption Law enshrine exactly this understanding.
Let us look at those amendments:
– Following the 1977 reform, Article 1985 of the Civil Code (CC) stated that the identity of adoptive parent(s) could be kept secret – a measure that was designed to protect the adoptive family from any possible extortion by the biological parents. The initiative to request that secrecy pertained to the adoptive parent(s), but was restricted to cases in which the child had been judicially declared to have been abandoned. The law did not guarantee the secrecy of the identity of the biological parents or their right to anonymity.
– When the adoption regime was amended by Executive Law no. 185/93 of 23 May 1993, the secrecy of the adoptive parent(s)’ identity became the rule, while that of the biological parents only applied if they expressly declared that that was what they wanted.
– Under the current legal regime governing the adoption process, as approved by Law no. 143/2015 of 8 September 2015, access to knowledge about his/her origins is now provided to an adoptee who is 16 years old or more and manifests that desire (subject to authorisation from his/her parents or legal representative for as long as he/she is still a minor); and that access takes place by means of an administrative process in which a judiciary authority (the Public Prosecutors’ Office) only intervenes in exceptional circumstances and for weighty reasons.
It is also important to note that Resolution of the European Parliament of 16 March 1989 on artificial insemination ‘in vivo’ and ‘in vitro’, which implements the right to know one’s genetic origins, required states to respect the right of persons conceived with recourse to those techniques to know their genetic origins, under the same terms as those applicable to the protection of the same right pertaining to adoptees.
The requirement to have recourse to a court of law in order to effectively implement the essential content of the right of a person born by means of MAP to his/her personal identity and to the development of his/her personality, along with the need for there to be “weighty reasons” in order for constitutional protection to apply, are manifestly disproportionate when confronted with the other fundamental rights in question. Given all of the above, and in particular the broadening of the possibility of the use of MAP techniques and the change in the subsidiary model that had applied until now, the petitioners consider the restriction imposed in Article 15 of Law no. 32/2006 of 26 July 2006 to be excessive and thus in violation of the principle of proportionality set out in Article 18(2), CRP, of the right to personal identity and to the development of one’s personality, of the dignity of the human person, and no less important, of the best interests of the child, which the state has a particular duty protect as a result of Article 69, CRP.
Breach of the principle of equality
In the light of the above considerations with regard to the right to know one’s genetic identity, the petitioners also believe that there is a violation of the principle of equality before the law, in that only a part of the Portuguese population – the part that is not born with recourse to MAP techniques – has the right to know their genetic identity, while those who are born in that way are excluded. It is true that for reasons involving knowledge of a possible impediment to matrimony, and if the donor consents to it, or for weighty reasons recognised by a court, it is possible for the donor’s identity to be revealed. However, there is no universal right to that knowledge. That right is only recognised to pertain to persons who are not born with recourse to MAP techniques – which are now available to any and every person who wants to resort to them.
The principle of equality and non-discrimination contained in Article 13, CRP, is not compatible with such restrictions; less still can it be applied on a case-by-case basis. As a result, and without offering any further arguments, which they see as unnecessary, the petitioners consider that the aforementioned Articles of Law no. 32/2006 conflict with the precepts of the principle of equality, thereby violating that principle.
In addition, the Portuguese legal system seems inconsistent in relation to this matter: compounding the flagrant breach of the principle of equality, the fact that the system allows adoptees to know their origins, but not persons who are born with recourse to MAP techniques, is incomprehensible. There is no admissible reason that would justify this difference, which further increases the discrimination experienced by persons born with recourse to MAP techniques
Violation of the primacy of the dignity of the human person and of the state’s duty to protect childhood
The evolution of the sciences and biotechnology in the last few decades has been exponential, bringing with it huge impacts on society in general and the institution of the family in particular. We are thus witnessing profound changes whose potential poses the law with the difficult task of weighing up and imposing limits, not only in the name of order, but also of humanity. In a deeply individualist world, influenced by an ever more utilitarian and hedonistic idea of the human being in the face of science and medicine, it must be recalled that scientific evolution is not derived from a mere individual, egotistical interest, but rather from a public interest oriented towards the creation of better conditions for the whole of humanity.
It is not our intention to restrain the advances that have been made, which are also conquests made by humanity, but simply to ensure that the impetus to discover and to overcome hurdles is not disconnected from a concrete weighing up of values which, in both their individual and their collective dimensions, constitute the essence of the human being.
The contract under which a woman undergoes a pregnancy on behalf of another person and hands over the child after the birth, renouncing the powers and rights pertaining to maternity, did not exist in the Portuguese legal system until Law no. 25/2016 of 22 August 2016 entered into force.
Gestational surrogacy is a method of procreation whose status in different legal systems ranges from being absolutely banned to being allowed without restrictions. In Portugal, at the moment, the model that stems from Law no. 25/2016 of 22 August 2016 is equivalent to an intermediate solution: gestational surrogacy is permitted under exceptional terms and based on proof of the existence of clinical and health-related reasons.
One of the recurrent criticisms levelled at gestational surrogacy is that it represents a true mercantilization of the human being: the child becomes the object of a transaction and the gestating mother turns into a mere incubator in the service of the beneficiaries; that this is a process of objectification which, regardless of whether it is for-profit or free of charge, undoubtedly involves the principle of the dignity of the human person, be it in relation to the gestational surrogate, be it in relation to the child.
We acknowledge that in a world – and a country – where cases of infertility are increasing in number, surrogate motherhood is presented as one more medically assisted procreation method, aimed at infertility treatments which, under these exceptional circumstances and at the limit, seek to enable the beneficiaries to achieve their design of having children and the gestational surrogate to fulfil a commendable spirit of altruism and solidarity.
However, in the great majority of cases, the reality is different.
It is a known fact that the majority of ‘wombs for rent’ – a term which is commonly used and whose pejorative sense reflects a world reality that is both inadmissible and unfortunate – are to be found in the poorest countries, where renting one’s womb is one more means of subsistence for the woman and her family. On the other hand, located in the geographical antipodes of those regions and acting in return for large sums of money, companies based in developed countries ensure a rigorous supervision of the gestating women’s dietary and health-related conditions, and even the possibility of an abortion when the end product fails to satisfy. The only ethic that is respected is that of the market.
Moreover, even in those countries where for-profit gestational surrogacy transactions are banned, women can be coerced into accepting them, namely by means of economic pressures, or even by threats or promises in relation to work or family. In terms of their socioeconomic situation, it is worth mentioning that the beneficiary parents are usually older, richer and more highly educated than the gestational surrogates, and this also contributes to the risk of coercion. In other words, even when the women who bear the children are not paid, the truth is that they may receive a form of compensation which is sometimes so great that it becomes impossible to refuse.
Gestational surrogacy is an activity that is on the rise in many countries, and there are more and more agencies which, in this context, also profit from both the suffering of unfertile couples and the vulnerability of many women. The fact is that extremely large sums are charged in return for selecting surrogate mothers, and if necessary, donors, employing highly intrusive recruitment processes in which the objectification of both the woman and the child are even more evident.
In legalising ‘gestational surrogacy’, and bearing in mind the rights of the people involved – both those who themselves intervene in MAP processes, and those who are born following the application of MAP techniques – the Portuguese legislator cannot overlook foreign experiences. Nor can it fail to consider the potential social, psychological and legal complications, which increase exponentially due to the number of people (six, in extreme situations) who can claim parental rights: the egg donor, the gestational surrogate, the female beneficiary, the sperm donor, the surrogate’s husband (a subject who is simply ignored in the present Law and whose consent is fundamental, given the presumption of paternity), and the male beneficiary. Focusing on the gestational surrogate – the biological mother – it is evident that she is instrumentalised in the service of a desire to have children and practically disappears as a subject of rights.
There is little research on the long-term psychological effects of gestational surrogacy, so it remains unknown whether emotional distancing and indifference affect the surrogate. However, one should foresee huge difficulties similar to those that are already known in the case of the adoptive relationship. The fact is that there is enough scientific proof that the surrogate does not remain indifferent to what happens to her when she is pregnant, and that she lives the pregnancy as her own and suffers with the abandonment of the child – circumstances which make the occurrence of situations such as surrogates who change their mind and want to become legal mothers, surrogates who want to abort, or surrogates who, later on, want to know or obtain information about the child both understandable and indeed highly possible.
In all of these situations there is a conflict between rights which are afforded equal protection in the Constitution, and none of them finds a satisfactory answer in the present Law.
Looking at the question from the perspective of the child who is going to be born – whose rights must always prevail under the law – there is a whole range of other questions to which this Law also fails to provide a satisfactory answer:
– The importance to the development of the child who is going to be born of the connection (psychological, biological/epigenetic) that establishes itself between the foetus and the woman during gestation.
– The impact which breaking the connection that is established during gestation may have on the child.
– The way in which the rights of the child who is going to be born are able to be guaranteed, taking the reproductive context into account.
– The way in which the child’s best interests are assured in the event of (i) a conflict that results in a breach of contract; (ii) decisions regarding termination of the pregnancy; (iii) a refusal to hand over the child; (iv) a refusal to accept the child after the birth; or (v) the death of the beneficiaries before the birth occurs.
By basing the Republic on the dignity of the human person as an autonomous and specific value that is inherent in every human being as a result of their simple personality (see Article 1), the Constitution makes two essential assumptions:
– The person comes first, and political organisation only comes afterwards.
– The person is a subject and not an object; he/she is a goal or end of, and not a means for, social-law relationships.
These principles apply as much to the person who has already been born as they do to the unborn person from the moment of his/her conception. Indeed, in referring to the dignity of the human person, Article 67(2)(e), CRP seeks to safeguard not only the rights of the persons who may most directly be put at risk as a result of the application of MAP techniques, but also those of the persons who were born following the application of those techniques.
Within the context of the present Law, it seems quite clear that in the name of a right to form a family and of a right to private and family life, not only do we witness the objectification of the surrogate mother, but we also see that the child who is then born is treated like a product – i.e. an end product that can end up being rejected by everyone, or on the contrary, being wanted by everyone.
In either case, this is something that runs counter to the constitutional protection afforded to the dignity of the human person.
At this point it is appropriate to quote Immanuel Kant: ‘Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end. (...) In the kingdom of ends, everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all
price and therefore admits of no equivalent has a dignity’.
Ultimately, and inasmuch as it is impossible to ignore the profound shortcomings contained in the regime, the one who is most prejudiced is in fact the child.
As such, we must conclude that, in addition to the violation of the constitutional principle of the protection of the human person, the provisions we have highlighted also violate the state’s duty to protect children with a view to their healthy and full development, as laid down in Article 69(1), CRP.
Lastly, we again refer the Court to our earlier remarks about Article 15(1) of Law no. 32/2006 of 26 July 2006, which provides for absolute confidentiality in relation to everyone involved in the process and makes no provision whatsoever, even in the form of an exception, for the possibility of knowing the identity of either the gestational surrogate, or the donors, in accordance with Article 15(4).
The petitioners conclude by summarising the essential reasons for their request for an abstract ex post facto review:
“As such, the signatories consider that the substantial degree of openness to heterologous insemination with donor semen introduced by the new wording of Articles 10 and 19 of the MAP Law, when interpreted in conjunction with Article 15 of the same Law, which subjects the possibility that a person who is born via MAP can obtain knowledge about the donor’s identity to the need to bring court proceedings and to the existence of strong reasons why the confidentiality regime should be set aside, can potentially violate the principle of respect for the dignity of the human person provided for in Articles 1 and 67(2)(e) of the Constitution of the Portuguese Republic; the principle of equality provided for in Article 13 of the Constitution of the Portuguese Republic; the principle of proportionality provided for in Article 18(2) of the Constitution of the Portuguese Republic; and both the fundamental content of the right to personal identity and to the free development of one’s personality provided for in Article 26(1) of the Constitution of the Portuguese Republic, and the right to genetic identity provided for in paragraph (3) of the same Article. For exactly the same reasons, the signatories consider that the part of the new wording of Article 20(3) of the MAP Law which dispenses with the automatic official investigation of paternity when only the consent of the person subjected to MAP was required, is also in breach of the aforementioned provisions of the Constitution of the Portuguese Republic.
The petitioners further consider that both the new wording of Article 8 and the entire regulation of gestational surrogacy set out therein fail to adequately safeguard the rights of the child and of the surrogate, and that that surrogacy may violate the principle of respect for the dignity of the human person provided for in Articles 1 and 67(2)(e) of the Constitution of the Portuguese Republic; the principle of proportionality provided for in Article 18(2) of the Constitution of the Portuguese Republic; the right to the protection of childhood by the state, as provided for in Article 69(1) of the Constitution of the Portuguese Republic; and the fundamental content of both the right to personal identity and to the free development of one’s personality provided for in Article 26(1) of the Constitution of the Portuguese Republic, and the right to genetic identity provided for in paragraph (3) of the same Article.”
2. Notified of the opportunity to pronounce itself in relation to the review request in its role as the author of the norms before the Court, the Assembly of the Republic said nothing.
3. The President of the Court has drawn up the memorandum referred to in Article 63(1) of the Law governing the Organisation, Functioning and Procedure of the Constitutional Court (Law no. 28/82 of 15 November 1982, hereinafter “Constitutional Court Law”), and that memorandum has been debated under the terms of paragraph (2) of the aforesaid precept. It is now up to the Court to decide the present case in accordance with the guidelines it has established.
II. Grounds
A) Framework underlying the questions of unconstitutionality and ensuing analysis
4. The LPMA norms whose possible unconstitutionality the petitioners have asked the Court to assess concern three core issues which, albeit linked to one another, warrant autonomous analysis:
i) Whether it is legally admissible for there to be a right to form a family with recourse to gestational surrogacy, in cases in which the parental project cannot be achieved in another way due to clinical situations that prevent pregnancy.
ii) The right of persons who are born as a consequence of medically assisted procreation (“MAP”) techniques that include resorting to the donation of gametes or embryos, to know the identity of the donor or donors; and in the case of persons who are born with recourse to gestational surrogacy, to know the identity of the respective surrogate.
iii) Whether it is legitimate to dispense with the automatic official investigation of paternity in the case of children born of a woman who has resorted on an individual basis – i.e. outside the context of a marriage or a de facto partnership – to MAP techniques in order to become pregnant.
The aforementioned connection between these issues is derived not just from the circumstance that all the norms in question are contained in the same legislative act, but also from the fact that the gestational surrogacy which is permitted under the terms of the LPMA presupposes the use of MAP techniques. The justification for treating each of the three issues autonomously is primarily based on the specific nature of each one and the different groups of interests that are at stake in each case, but is also strengthened both when we look at the vicissitudes of the legislative procedures which culminated in the version of the LPMA that is now before the Court, and when we consider that the question of knowing the identity of gamete donors has already been addressed by this Court, albeit in a different legal/normative context [see Ruling no. 101/2009; this and all the other Rulings cited below are available (in Portuguese, and in some cases in English) at http://www.tribunalconstitucional.pt/tc/acordaos/].
5. The LPMA, which regulates the use of MAP techniques, was passed in 2006 and sought to fulfil the duty to regulate that subject matter laid down in Article 67(2)(e) of the Constitution, which, with regard to the protection of the family, charges the state with “Regulating assisted procreation in such a way as to safeguard the dignity of the human person”.
The norms that are challenged in the present case result from legislative amendments made to the LPMA by Laws nos. 17/2016 of 20 June 2016, and 25/2016 of 22 August 2016. We should additionally note that the same Law was also amended by Law no. 58/2017 of 25 July 2017, albeit the provisions of the latter legislative act are not relevant to our analysis here. Be that as it may, the LPMA was republished in annexe to Law no. 58/2017 of 25 July 2017, “with the current text and the necessary corrections” (see Article 4, Law no. 58/2017).
Law no. 17/2016 expanded the extent of the possible beneficiaries of MAP techniques, with the express goal (set out in its Article 1) of ensuring “access to medically assisted procreation (MAP) by all women”. As such, under Article 4(3), LPMA, MAP techniques can now be used by all women, whether or not they are the object of a diagnosis of infertility; and under Article 6(1), it is now possible for MAP techniques to be used by different-sex couples and by all-female couples, who are married or live under conditions that are analogous to those of spouses, as well as by all women, regardless of their civil status and/or their sexual orientation.
Law no. 25/2016 regulates access to gestational surrogacy, limiting it to cases in which the person has no uterus, or that organ is damaged or suffers from an illness in such a way as to absolutely and definitively preclude pregnancy, as well as to “clinical situations that justify it”.
An initial version of the draft law that gave rise to this Law was vetoed by the President of the Republic, acting under the terms of Article 136(1) of the Constitution. The President considered that the Decree that was sent to him for enactment did not fulfil the cumulative conditions which the National Council of Ethics for the Life Sciences (CNECV) had set out in two Decisions that were issued four years apart and when the Council was made up of different members. Both those Decisions “reflected a perspective that was more open to a legislative initiative in this field”. The aforesaid conditions – which are transcribed in the request to the Court – were listed in Opinion no. 63/CNECV/2012, and to the extent that they were not contemplated in the draft legislative act which was being analysed at the time, were referred to in Point (2) of Opinion no. 87/CNECV/2016 [the “Council also takes the view that the proposed text does not respond to the majority of the objections and conditions which it had already deemed cumulatively indispensable in its Opinion 63/CNECV/2012, amongst which the following are particularly significant:
(…)”; these Opinions are available (in Portuguese) at http://www.cnecv.pt/pareceres.php?p=0 ]. The fact is that, unlike what happened in its 2012 assessment – in which, by a majority decision, the CNECV accepted the legitimacy of gestational surrogacy in exceptional cases and subject to fulfilment of the aforementioned conditions – in its 2016 Opinion the same Council unanimously considered that the gestational surrogacy regime before it – which essentially sought to “lift the prohibition laid down in Article 8”, LPMA – neither “safeguards the rights of the child who is to be born and of the surrogate woman, nor provides an adequate framework for the gestation contract” [see Point (1) of the Opinion].
With regard to the more open perspective implicit in the cumulative conditions required by the CNECV, the President offered the comparative example of Resolution of the European Parliament 2015/2229 (INI) of 17 December 2015, which was “passed by 421 votes in favour, 86 against and 116 abstentions, and which, in its paragraph 115, condemned gestational surrogacy and advocated its prohibition” (Paragraph 115 reads as follows: “Condemns the practice of surrogacy, which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments”).
The original draft was subsequently reformulated and was reconsidered by the Assembly of the Republic, which passed the new text, whereupon the President of the Republic saw fit to enact it. The basis for his decision was as follows:
“The analysis of the modifications made by the legislator to the Decree that is now before me for consideration shows that, although the amended text does not totally match that which ought to be the most complete solution in the light of the abovementioned Opinions, the presidential veto has nonetheless caused the Assembly of the Republic to reassess a substantial part of the conditions recommended by that Council, thereby fulfilling, to that extent and within the existing parliamentary framework, the second of the functions that pertain to a political veto by the President of the Republic”.
In this way, gestational surrogacy, which had previously been prohibited in every case [see Articles 8(1) and 39 of the original version of the LPMA, which referred to “surrogate motherhood”], now became permitted in the Portuguese legal system, on an exceptional basis and on condition that the intervention respected certain positive and negative requisites.
Law no. 17/2016 was regulated by Regulatory Decree no. 6/2016 of 29 December 2016, whose preamble says that it seeks “to ensure the principle of the equal treatment of new [MAP] beneficiaries” and of those persons who were already beneficiaries under the previous legislation, “favouring equity in access to MAP techniques”, and ensuring “an adequate, safe and non-discriminatory provision of services, as set out in Law no. 17/2016 of 20 June 2016”.
Law no. 25/2016 was then regulated by Regulatory Decree no. 6/2017 of 31 July 2017. It should be noted that, as provided for in Article 4(2) of Law no. 25/2016, the entry into force of the amendments to Articles 8 and 39, LPMA – precisely those which most directly and immediately concern matters regarding gestational surrogacy – was subject to the entry into force of the respective regulations. As provided for in Article 3(1) of Regulatory Decree no. 6/2017, the National Council for Medically Assisted Procreation (CNPMA) approved the standard gestational surrogacy contract and made it available on its website (see http://www.CNPMA.org.pt/Docs/ContratoTipo_GS.pdf). It also took several Decisions that directly or indirectly affect matters linked to gestational surrogacy (available at http://www.CNPMA.org.pt/CNPMA_documentacao.aspx), such as:
– Decision no. 15-II/17 of 20 October 2017 (establishing a maximum age limit for access to MAP techniques by beneficiary women: up to 50 years of age).
– Decision no. 16-II/17 of 20 October 2017 (establishing a maximum age limit for access to MAP techniques by the male partners in beneficiary couples: up to 60 years of age).
– Decision no. 18-II/17 of 8 September 2017 (procedure for the prior authorisation of entry into gestational surrogacy contracts).
– Decision no. 20-II/17 of 20 October 2017 (interpreting the concept of “beneficiaries” for the purposes of recourse to gestational surrogacy: only heterosexual couples or couples formed by two women, who are married or live under conditions that are analogous to those of spouses).
– Decision no. 21-II/17 of 24 November 2017 (establishing a maximum age limit for the surrogate in the gestational surrogacy process: less than 45 years of age, unless she is the mother or sister of either member of the beneficiary couple, in which case the aforesaid limit is less than 50 years of age).
– Decision no. 22-II/17 of 15 December 2017 (establishing various technical aspects of the entry into and execution of gestational surrogacy contracts).
6. The Court must thus successively assess the alleged unconstitutionality of the LPMA norms: (i) which permit the use of gestational surrogacy and which, according to the petitioners, are the norms contained in paragraphs [1] to [12] of its Article 8 [“and consequently the norms or part of the LPMA norms that refer to the gestation entailed in surrogate motherhood – Articles 2(2), 3(1), 5(1), 14(5) and (6), 15(1) and (5), 16(1), 30(2)(p), 34, 39, and 44(1)(b)”]; (ii) which preclude the right of those who are born as a consequence of MAP processes that resort to the donation of gametes or embryos to know the identity of the donor or donors, and in the case of persons born with recourse to gestational surrogacy, to know the identity of the respective surrogate woman – i.e. the norms contained in Articles 15(1) and (4), taken in conjunction with Articles 10(1) and (2) and 19(1), LPMA; and (iii) which dispense with the automatic official investigation of the paternity of the child born as a consequence of resorting to MAP techniques, in accordance with Article 20(3), LPMA.
The nature and transversal scope of the legal problems at stake, people’s growing mobility, the universality of one of the invoked parameters – human dignity – and the openness of the Constitution to conventional International Law under Articles 8 and 16(1), CRP, all justify paying special attention to both International and Comparative Law. As such, in the aforementioned Ruling no. 101/2009 the Court stated that:
“Within the overall scope of the review of the constitutionality of laws, the first thing to take into account is the Constitution of the Portuguese Republic, albeit one cannot wholly exclude the possible constitutional relevance of international instruments, to the extent that it may be possible to consider that they represent constitutionalised law or to use them as a criterion for interpreting constitutional norms. (…)
[At the same time] there is no doubt that in matters linked to human problems that are as universal as those related to medically assisted procreation, it may be of interest to know what happens within the scope of other legal experiences and (without losing each legal system’s sense of autonomy) perhaps draw conclusions therefrom, especially when it is possible to deduce common legal principles from those experiences (…).
The importance of all these data is comprehensible in the light of the ‘openness’ of the constitutional parameters that are applicable in matters regarding medically assisted procreation, but it is those parameters that will offer the decisive decision-making criteria. The Constitution raises the dignity of the human person up to the status of primary reference in matters linked to medically assisted procreation, and it is in accordance with that principle and the fundamental rights in which it can take concrete form that one must gauge the validity of the normative solutions laid down in Law no. 32/2006.”
Our analysis of the abovementioned data must consider not only the static aspects that correspond to the law produced by the legislator, but also the dynamics of its application in case law. Hence the decision to opt, especially in relation to the matter of gestational surrogacy, for an integrated – and as such, necessarily more descriptive – approach that reflects the “living law” in each of the cases we consider.
B) Gestational surrogacy
B.1. Preliminary analysis of the amendments to the LPMA made by Law no. 25/2016
7. The amendment to the LPMA made by Law no. 25/2016 sought to permit and regulate access to gestational surrogacy on an exceptional basis and under certain conditions – namely “in cases in which there is no uterus, or that organ is damaged or suffers from an illness in such a way as to absolutely and definitively preclude pregnancy” (see Article 1, Law no. 25/2016). In doing so, it did away with the previous absolute ban and instead changed Article 8, LPMA, to read as follows:
“Article 8
Gestational surrogacy
1 – “Gestational surrogacy” is taken to mean any situation in which the woman is willing to undergo a pregnancy for someone else and to hand over the child after the birth, renouncing the powers and duties pertaining to maternity.
2 – It shall only be possible to enter into gestational surrogacy transactions on an exceptional basis and when they are free of charge, in cases in which there is no uterus, or that organ is damaged or suffers from an illness in such a way as to absolutely and definitively preclude the woman’s pregnancy, or in clinical situations that justify it.
3 – Gestational surrogacy may only be authorised by means of a medically assisted procreation technique with recourse to the gametes of at least one of the respective beneficiaries, and the gestational surrogate may not in any event be the donor of any oocyte used in the concrete procedure in which she is a participant.
4 – Entry into gestational surrogacy transactions shall require prior authorisation from the National Council for Medically Assisted Procreation (CNPMA), which shall supervise the whole process, and that authorisation may only be granted after hearing the views of the Portuguese Medical Association (OA) and in the situations provided for in paragraph (2).
5 – Any type of payment or the donation of any item or amount by the beneficiaries to the gestational surrogate in return for the gestation of the child is prohibited, except for the amount corresponding to the expenses derived from the healthcare that is effectively provided, including transport costs, on condition that they are duly substantiated by the applicable document.
6 – Entry into gestational surrogacy transactions is not permitted when there is an economically subordinate relationship, namely of an employment or service-provider nature, between the parties involved.
7 – The child who is born with recourse to gestational surrogacy shall be deemed to be the son or daughter of the respective beneficiaries.
8 – The provisions of Article 14 of the present Law are applicable, mutatis mutandis, to gestational surrogacy, in terms of the validity and efficacy of the parties’ consent, the gestational surrogacy transaction regime and the parties’ rights and duties, as well as to the intervention of the National Council for Medically Assisted Procreation and the Medical Association.
9 – In cases of gestational surrogacy, the rights and duties provided for in Articles 12 and 13 are applicable, mutatis mutandis, to the beneficiaries and the gestational surrogate.
10 – Gestational surrogacy transactions shall be entered into by means of a written contract between the parties, to be supervised by the National Council for Medically Assisted Procreation, which contract shall obligatorily set out, in conformity with the current legislation, the provisions to be fulfilled in cases in which foetal deformities or illnesses occur and in cases in which there is a voluntary termination of the pregnancy.
11 – The contract referred to in the previous paragraph may not impose behavioural restrictions on the gestational surrogate, nor may it impose norms that infringe on her rights, freedom and dignity.
12 – Whether they are for profit or are free of charge, gestational surrogacy transactions that do not respect the provisions of the previous paragraphs are null and void.”
The petitioners argue that the remaining LPMA articles which they mention with regard to gestational surrogacy – namely Articles 2(2), 3(1), 5(1), 14(5) and (6), 15(1) and (5), 16(1), 30(2)(p), 34, 39, and 44(1)(b) – are consequently unconstitutional.
In any case, we should note that Law no. 25/2016 also modified Article 39, with regard to the criminalisation of gestational surrogacy. With its modified wording, the text now punishes not only anyone who, in their role as beneficiary or gestational surrogate, concretely enters into gestational surrogacy contracts that entail any form of profit [see Article 39(1) and (2)] – something that was already provided for in the original text of the LPMA [see Article 39(1) of that text] – but also anyone who, in their role as beneficiary or gestational surrogate, concretely enters into gestational surrogacy contracts that are free of charge, but fall outside the cases provided for in Article 8(2) to (6) [see Article 39(3) and (4)].
The National Council for Medically Assisted Procreation (CNPMA) itself suggested on a number of occasions that the original version of the MAP Law should be modified with regard to surrogacy. It substantiated its position on the following grounds, which were also embraced in the legislative initiatives that culminated in the passage of Law no. 25/2016:
“It appears neither fair nor ethically justified, but instead unfair and disproportionate, to preclude persons who are unable to procreate in medically verified and justified situations from the possibility of having children, when they themselves have done nothing to contribute to the situation in which they find themselves” [see, e.g. Relatório Referente à Atividade Desenvolvida no Ano de 2010 (2010 Activity Report), p. 37, or Parecer n.º 27/CNPMA/2012 (CNPMA Opinion no. 27/2012), both in Portuguese].
8. The first major difference we should point to between the original version and the 2016 amendments is of a terminological nature: the expression “surrogate motherhood” is replaced by the expression “gestational surrogacy”. In this respect, and after first acknowledging that “the semantics that are chosen are never indifferent in Bioethics”, Opinion no. 63/CNECV/2012 – which analysed two Member’s bills, one of which was put forward by Members of the Assembly of the Republic belonging to the Socialist Party (PL no. 131/XII), and another by Members from the Social Democratic Party (PL no. 138/XII), and both of which also addressed the question of “surrogate motherhood” – made the following observation:
“Although the expression ‘surrogate motherhood’ is widely disseminated and included in both our law and the two drafts we are considering here, it can lead to or suggest the existence of ethical and anthropological misunderstandings and ambiguities, in that it tacitly supposes acceptance of the fragmentation of biological (genetic and uterine), social and legal motherhood/maternity.
The CNECV has opted for the expressions ‘gestational surrogacy’ and ‘gestational surrogate’, which reflect the objective realities that mediate the process which can occur in between the uterine transfer/implant of the human embryo and any birth at the end of the evolutive pregnancy.”
The truth, however, is that this option is itself not uncontroversial (on the terminological discussion, see e.g. the references in: ESTRELA CHABY, “Direito de constituir família, filiação e adoção – Notas à luz da jurisprudência do Tribunal Constitucional e do Tribunal Europeu dos Direitos do Homem” in Estudos em Homenagem ao Conselheiro Presidente Rui Moura Ramos, vol. II, Almedina, Coimbra, 2016, pp. 329 et seq., p 349, note 70).
Nonetheless, and despite the terminological differences, there is a continuity at the level of the legal notion: the “surrogate motherhood” that was previously provided for in Article 8(2) of the original version of the LPMA corresponds to the “gestational surrogacy” that is now set out in paragraph (1) of the same precept, with the wording given to it by Law no. 25/2016. This is a broad notion (matching the one proposed by GUILHERME DE OLIVEIRA, Mãe há só Uma Duas! O Contrato de Gestação, Coimbra Editora, Coimbra, 1992, pp. 8-9) – one which, right from the start, refuses to do without the will of the surrogate herself, inasmuch as it is she who is willing and who renounces – that is designed to cover the different gestational surrogacy formats: that which is prohibited (genetic surrogacy, in which the surrogate contributes her own oocytes to the conception, be it by means of a sexual act or by the use of MAP techniques), and that which is permitted, on an exceptional basis (merely gestational surrogacy, which implies that the surrogate subjects herself to MAP techniques without contributing her oocytes to the formation of the embryo).
When considering this continuity, we cannot lose sight of the change in paradigm that has occurred in the meantime with regard to MAP [see Articles 4(3) and 6(1) in fine, LPMA] – a change that can have repercussions for the perception and/or perhaps the understanding of gestational surrogacy itself, inasmuch as the latter presupposes resorting to MAP. As the CNECV points out in its Opinion no. 87/CNECV/2016, there is a “change in the paradigm regarding the use of MAP techniques, with the questions centred around one reality: that the beneficiary of the techniques is the woman, regardless of whether or not she is accompanied by a male or female partner. As such, the amendments made to Law no. 32/2006 of 26 June 2006 do not imply a true widening of the range of beneficiaries of MAP techniques, but instead constitute legal recognition that the beneficiary of the techniques is the person to whom they are potentially applied – i.e. the woman” (see loc. cit. III.4., p. 11; italics added). The justification for this change, as set out in the drafts which gave rise to Law no. 17/2016, is the “protection of the freedom and autonomy of the woman who wants to be a mother and to whom the MAP techniques are going to be applied” (ibidem; italics added). In this sense, Member’s Bill no. 122/XII, which was submitted by the Left Bloc in 2012 and was partly reproduced in its initial 2016 draft (Member’s Bill no. 36/XIII, which initiated the legislative procedure with regard to Law no. 25/2016), read as follows:
“[One cannot see a valid reason that would justify] precluding a woman from resorting to MAP as a result of her personal situation, civil status, clinical condition or sexual orientation. A woman on her own – whatever her sexual orientation – or a woman married to another woman, be they fertile or infertile, must be able to make a reality of their desire to be mothers without being obliged to that end to be in a relationship they don’t want, a relationship that contradicts their identity and constitutes an attack on their personality. (…)
Medical advances must be placed in the service of people, their personal fulfilment and their happiness. The Law on MAP must include and enshrine an ethic oriented towards personal happiness, defined by the person in question in accordance with their values and criteria, above all when are at stake are choices and options that involve, affect and construct each person’s individuality and privacy. Neither the law nor society should impose set patterns or ways of life; on the contrary, they should welcome the plurality of ways of thinking and living motherhood, promoting a culture of acceptance of and respect for difference and for each person’s choices”.
According to the legal definitions set out in Article 8(1), LPMA – which, as we mentioned earlier, is also relevant to the delimitation of the objective type of criminalisation provided for in Article 39 of the same Law – “gestational surrogacy” involves an agreement – the gestational surrogacy contract – between the surrogate on the one hand and whoever intends to take on the parental responsibilities towards the child who is then born (the beneficiaries, sometimes also referred to, especially in other legal systems or in legal doctrine, as “intended” or “commissioning parents”, “legal parents”, or “social parents”) – on the other.
It should be noted in any case that the use of the plural in the present Ruling – “beneficiaries” – should not be seen as meaning that the Court is taking a position with regard to the question of whether all the “beneficiaries” referred to in Article 6(1), LPMA, are equally “beneficiaries” for the purposes of the provisions of Article 8 and precepts related thereto – for example, Articles 14(6), 16(1) or 30(2)(p) (see, in the sense that only couples, be they heterosexual or of women, can be beneficiaries of gestational surrogacy, the abovementioned CNPMA Decision no. 20-II/2017 of 20 October 2017).
Within the scope of the aforementioned agreement, the surrogate agrees: (i) to become pregnant in the interest of the beneficiaries and to carry the pregnancy to the end; and (ii) after the birth, to hand the child who has been born over to the beneficiaries, “renouncing the powers and duties pertaining to maternity”. This renunciation is justified, and makes sense for the characterisation of the legal institution of gestational surrogacy within a normative framework in which it is forbidden and, under the general terms of the law, filiation with regard to the mother results from the fact of birth [see Article 1796(1), CC]. The original text of Article 8(3), LPMA confirmed exactly that – the total inefficacy of a gestational surrogacy contract derived from the nullity laid down in paragraph (1) of the same precept: “A woman who undergoes a surrogate pregnancy of someone else shall, for all legal purposes, be deemed the mother of the child who is then born”.
Having said that, the amendments to the LPMA made by Law no. 25/2016 precisely sought to modify that format, permitting gestational surrogacy in certain circumstances. In those circumstances, and on condition that it is authorised by the competent administrative entity, the gestational surrogacy contract is lawful, and exactly because of that, effective. However, one of the conditions for the efficacy intended by the parties to be possible is a criterion for the establishment of maternity which, unlike the general criterion, is not based on the birth. This is why Article 8(7), LPMA, now says that the “child who is born with recourse to gestational surrogacy shall be deemed to be the son or daughter of the respective beneficiaries”. In other words, and in comparison with the earlier text of paragraph (3) of the same precept: when a child is born following the execution of an effective gestational surrogacy contract, the law sets aside the general criterion for establishing filiation, be it in relation to the mother or the father, and that child is deemed the son/daughter of whoever appears as a beneficiary in the aforesaid contract.
In the new normative framework, gestational surrogacy founded on a duly authorised, valid and effective contract requires the surrogate to undertake the following essential obligations:
– To subject herself to a MAP technique.
– To carry the pregnancy on behalf of the beneficiaries to the end and give birth to the child.
– To hand the child who is born over to the beneficiaries.
Regardless of whether a merely gestational surrogacy is undertaken with recourse to oocytes from the “intended mother” or from a third-party donor, for the gestating woman that surrogacy implies the use of MAP techniques and is therefore seen by some as a (simple) “variant on heterologous fertilisation undertaken in a woman” (in this sense, see VINCENZO SCALASI, “Maternità surrogata: come far cose com regole” in Scritti in Onore di Giovanni Furgiuele, t. II, Universitas Studiorum, Mantua, 2017, pp. 219 et seq., pp. 219-220). Albeit subjected to a MAP technique, the surrogate is nonetheless not considered to be its beneficiary, in that once the intended pregnancy has become a reality, it will be undergone on behalf of someone else, inasmuch as the parental responsibilities in relation to the child who is then born will not be undertaken by the surrogate, but by the third parties with whom she has previously entered into a contract. Because of this, it cannot be the object of the application of the maternity criterion provided for in relation to the female beneficiaries of MAP techniques, which, due to the provisions of Article 10(2), LPMA, ends up returning to the fact of the birth – i.e. the actual childbirth [see Article 1796(1), CC; we should note that the provisions of Article 20(1), LPMA, only apply to the partner – man or woman – of a woman who undergoes the MAP technique within the context of a couple; and that paragraph (3) of the same precept presupposes application of the aforementioned Civil Code criterion to a woman who is subjected to MAP outside the context of a couple].
This means that the reference to renouncing the powers and duties pertaining to maternity contained in the final part of Article 8(1), LPMA, is at least ambiguous: it is not possible to renounce legal positions of which one is not – and, under the provisions of paragraph (7) of the same precept, cannot become – the holder. Indeed, the surrogate (and also the beneficiaries) consents and agrees to the gestational surrogacy, quite apart from anything else because it is her will that the filiation of the child who is then born – and consequently the corresponding future parental responsibilities – be established in relation to the other contracting party – i.e. the beneficiaries to whom Article 8, LPMA, refers, and not to herself. Its own raison d’être means that gestational surrogacy does not seek to implement the surrogate’s own parental project, but rather that of the beneficiaries.
However, and on the other hand, gestational surrogacy is only lawful if it is accepted by both parties, with fulfilment of the positive and negative requisites provided for in the Law. Among the latter, it is important to highlight the consent of the parties, which is intended to ensure that their participation in the whole process is truly voluntary. With that in mind, and irrespective of the moment in time at which it is given and the form it takes, that consent is an essential precondition for the contract itself, from which it becomes autonomous in functional terms, obeying its own regime.
The fact is that “the provisions of Article 14, LPMA, are applicable, mutatis mutandis” to the validity and efficacy of that consent [see Article 8(8), LPMA]; and because the surrogate is not a beneficiary of the gestational surrogacy, Article 14(5) confirms that the Article’s provisions are also applicable, mutatis mutandis, to her consent – as indeed could only be the case. As such, and apart from anything else, the gestational surrogate:
– Must be informed, in advance and in writing, of all the known benefits and risks that result from the use of MAP techniques, as well as of all their ethical, social and legal implications [Article 14(2)].
– Give her free and informed consent, expressly and in writing, in the presence of the doctor in charge, at least with regard to the MAP techniques that are to be used [Article 14(1)].
– Must be informed, in advance and in writing, of the “significance of the gestational surrogate’s influence on embryonic and foetal development” [Article 14(6)].
– Can – can only – freely revoke her consent “until the beginning of the therapeutic MAP processes” [Article 14(4)].
Similarly, the rights provided for in Article 12, LPMA, are applicable – again mutatis mutandis, but regardless of the terms of the contract between them that has been, or is later, entered into to – to both the beneficiaries and the gestational surrogate [see Article 8(9), LPMA].
In any case, it seems clear from Article 14(6) that the consent of the surrogate and the beneficiaries within the overall framework of a gestational surrogacy is much more complex and encompassing than that required of beneficiaries within the scope of the use of MAP techniques.
To begin with because, unlike the latter, its authorising nature does not just refer to the use of the MAP techniques – although this aspect is present and especially refers to the consent which is given to the doctor in charge [see Article 14[1], LPMA]. The consent is also given to the other side with an interest in the gestational surrogacy: this is the consent which the beneficiaries give to the surrogate, in the sense that it applies to the transfer to her of an embryo formed with recourse to gametes from at least one of the beneficiaries; and the consent which the surrogate gives to the beneficiaries, in the sense that the pregnancy which results from the implantation of that embryo and the subsequent birth of the child are undergone for their benefit. In this second respect, the consent takes on a binding nature for whoever gives it, subjecting them to obligations accordingly.
Notwithstanding the above, the consents given by the beneficiaries and the surrogate are not only asymmetrical, in that the surrogate’s consent implies the acceptance of continuous interventions in relation to fundamental rights such as physical integrity or health and the right to form a family and to have children, whereas the beneficiaries’ consent is limited to the collection of the genetic material needed to implement the gestational surrogacy and to the uterine transfer of the embryo created thereby; but also and primarily, they are not exhausted by the contract which the beneficiaries and the surrogate mutually enter into. This is what we can conclude from the express, autonomous reference to the “parties’ consent” [in parallel with the mention of “gestational surrogacy transactions”, which must be entered into “by means of a written contract” – Article 8(10)] contained in the aforementioned Article 8(8), LPMA, taken in conjunction with the free revocability of the consent that is guaranteed under Article 14(4) of the same Law. Apart from this, one of the problems raised by Law no. 25/2016 – and whose origins lie in the vicissitudes of the respective legislative procedure – concerns the way in which the articulation between the consent of each of the parties and the contract they enter into is established from the formal point of view. However, this problem does nothing to prejudice the functional autonomy (subsequently reflected in specific legal requirements) of, on the one hand, the binding unilateral declaration that corresponds to the consent, and on the other, the agreement of wills embodied in the contract – a question that we will address later on.
Especially with regard to the consent given by the surrogate, the activity that is consented to is not limited to a single act or a set of one-off acts involving the use of MAP techniques; her consent necessarily encompasses the pregnancy – the biological, psychological and potentially emotional process inherent in gestation – which is undergone or lived, also necessarily, in the interest of the beneficiaries, and the childbirth itself, which is again also necessarily undergone in their interest. In other words, the surrogate’s consent implies the positive will that the child she comes to carry in her womb and to whom she then gives birth will not be deemed her son/daughter, but rather that of the beneficiaries. This is why she undertakes the obligation to hand the child who is born over to the latter – and not to just any third party.
This is the context within which we must interpret the reference to the renunciation “of the powers and duties pertaining to maternity” in the final segment of Article 8(1), LPMA, which must necessarily be taken in conjunction with the provisions of paragraph (7) of the same Article: the child to whom the surrogate gives birth is not deemed her son/daughter, but rather that of the beneficiaries of the gestational surrogacy contract. This legal consequence is underlain by the precondition of the validity and efficacy of the parties’ consent referred to in Article 8(8), and we should pay special attention to the surrogate’s consent, given the obligations she undertakes within the scope of the gestational surrogacy agreement. In order to validly enter into such an agreement, the surrogate must want the child whom she will carry in her womb during the pregnancy and to whom she will then give birth not to be her son/daughter, but instead that of the beneficiaries. The surrogate thus accepts not to be the mother of the child she will bear and whose birth she will undergo, in the knowledge that she could be deemed to be the mother, just as every woman who gives birth is considered to be – including those who only become pregnant following the use of a heterologous MAP technique in which the embryo is not formed with her genetic material. It is this choice by the surrogate – not to be the mother of the child who is born – which, although it may still be seen as a negative dimension of the freedom to form a family and have children, can, as stated in the law, be seen as a (prior) renunciation “of the powers and duties pertaining to maternity”.
9. The legal MAP regime governing lawful gestational surrogacy includes other aspects which, when combined with what has already been said about the consent on the part of the surrogate and beneficiaries, enable us to outline a certain gestational surrogacy model or concept which the Portuguese legislator has sought to permit while excluding alternative models or concepts, and to autonomise it in relation to the rules of International Law and the solutions to be found in a study of the applicable Comparative Law.
First of all, gestational surrogacy continues to be an exceptional solution – and as such, one that is subject to prior authorisation – for very specific situations of infertility [“It shall only be possible to enter into gestational surrogacy transactions on an exceptional basis (…) in cases in which there is no uterus, or that organ is damaged or suffers from an illness in such a way as to absolutely and definitively preclude the woman’s pregnancy, or in clinical situations that justify it” – Article 8(2); and such contracts must be authorised in advance – Article(3) and (4)]. In addition to this, and as already mentioned, when a child is born in the wake of the execution of an effective gestational surrogacy contract, the law waives the general criterion for the establishment of filiation provided for in Article 1796(1), CC, in relation to both the mother and the father, and the child is deemed to be the son/daughter of whoever appears as beneficiary in the said contract [Article 8(7)].
Secondly, only gestational surrogacy agreements that are gratuitous in nature are permissible [see again Article 8(2): “It shall only be possible to enter into gestational surrogacy transactions (…) when they are free of charge”]. This is confirmed in Article 8(5), which says that “Any type of payment or the donation of any item or amount by the beneficiaries to the gestational surrogate in return for the gestation of the child is prohibited, except for the amount corresponding to the expenses derived from the healthcare that is effectively provided”.
At the same time, and as a means of strengthening the guarantee of the freedom of the parties in general and the surrogate in particular, the Law requires that there be no economically subordinate relationship between them: “Entry into gestational surrogacy transactions is not permitted when there is an economically subordinate relationship, namely of an employment or service-provider nature, between the parties involved” [Article 8(6)].
Under the terms of Article 8(3), the Law ensures the existence of a genetic link to at least one of the beneficiaries by requiring the use of gametes from at least one of them. Moreover, the Law absolutely excludes genetic substitution: “the gestational surrogate may not in any event be the donor of any oocyte used in the concrete procedure in which she is a participant” (see ibidem).
Lastly, the contract must be entered into in writing [Article 8(10)], and the competence to issue the necessary prior authorisation pertains to the CNPMA, which must first hear the views of the Medical Association [Article 8(4)]. However, the Law does not stipulate any obligatory clauses that have to appear in the aforementioned contract, stating only that the gestational contract “shall obligatorily set out, in conformity with the current legislation, the provisions to be fulfilled in cases in which foetal deformities or illnesses occur and in cases in which there is a voluntary termination of the pregnancy”, and that it “may not impose behavioural restrictions on the gestational surrogate, nor may it impose norms that infringe on her rights, freedom and dignity” [see Article 8(10) and (11) respectively; italics added].
These essential traits of the legal regime must be taken into consideration when we weigh up the values that are meant to be fulfilled in the present case. Quite apart from anything else, they also make it possible to draw a profile of what lawful gestational surrogacy looks like in Portuguese Law, as a legal institution or format per se: a surrogacy that is subsidiary and exceptional, possesses a merely gestational nature, presupposes the autonomous consent of the interested parties, which is intended to ensure that they are voluntary participants, and must be formalised by means of a contract that is free of charge and authorised in advance, with the competence to issue that authorisation entrusted to the CNPMA. This is the profile of what can be called the Portuguese gestational surrogacy model, which we must consider when we assess the questions of whether the legal format or institution is constitutionally inadmissible in principle – i.e. regardless of particular aspects of the regime governing it – as the petitioners argue in their request for a review.
B.2. International Law and European Union Law
10. At the International Law level, gestational surrogacy is significant in terms of both the norms that seek to prevent the mercantilization of the human body or parts thereof, and those regarding the defence of children’s rights. Nor can one ignore the way in which the European Court of Human Rights (“ECHR”) has interpreted Article 8 (Right to respect for private and family life) of the European Convention on Human Rights (“ECoHR”).
On the first of these aspects, it is important to begin by looking at Article 21 (Prohibition of financial gain) of the Convention on Human Rights and Biomedicine (“Oviedo Convention”), which was approved under the aegis of the Council of Europe in 1997 (see Resolution of the Assembly of the Republic no. 1/2001 of 3 January 2001, and Decree of the President of the Republic no. 1/2001 of the same date):
“The human body and its parts shall not, as such, give rise to financial gain.”
This principle is in alignment with the provisions of the Universal Declaration on the Human Genome and Human Rights adopted by the General Conference of the United Nations Organisation for Education, Science and Culture (“UNESCO”) at its 29th session on 11 November 1997 (see its Article 4: “The human genome in its natural state shall not give rise to financial gains”). Similarly, Article 3(2)(c) of the Charter of Fundamental Rights of the European Union (“CFREU”) establishes that, in the fields of medicine and biology, “the prohibition on making the human body and its parts as such a source of financial gain” must be respected.
In weighing up the questions posed by the use of gestational surrogacy, we must also look to the Convention on the Rights of the Child (see Resolution of the Assembly of the Republic no. 20/90 of 12 September 1990, and Decree of the President of the Republic no. 49/90 of the same date), whose Article 3(1) enshrines the primacy of the interests of the child as an axiological-practical criterion for any decisions regarding children:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Article 7(1) of the same Convention enshrines the child’s right to be registered immediately after birth and his/her “right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents”. The first sentence of Article 9(1) says that the “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”.
At the European level, again with regard to children’s rights, we should point to the European Convention on the Exercise of Children's Rights adopted in Strasbourg on 25 January 1996 (see Resolution of the Assembly of the Republic no. 7/2014 of 27 January 2014, and Decree of the President of the Republic no. 3/2014 of the same date). Its Article 1(2) states that “The object of the present Convention is, in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority”. Of particular interest to us here is Article 24 (The rights of the child), CFREU: “In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration” (para. 2); and “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests” (para. 3).
It is clear that several of these minors’ rights can be seriously affected in cases of gestational surrogacy, primarily when there are conflicts between legal systems, and when specific solutions enshrined in certain legal regimes that are permissive in relation to gestational surrogacy are held to be contrary to public order in another legal system. The Hague Conference on Private International Law has considered this issue, and in 2014 published a study on parentage and the issues arising from international surrogacy arrangements (available at https://assets.hcch.net/docs/bb90cfd2-a66a-4fe4-a05b-55f33b009cfc.pdf), in which an attempt is made to outline a multilateral instrument containing a number of norms designed to limit the potential conflicts.
On the political level, we should begin by recalling the abovementioned Resolution of the European Parliament 2015/2229 (INI) of 17 December 2015, to which the President of the Republic referred in his veto (see § 5 above).
Acting under the aegis of the Parliamentary Assembly of the Council of Europe (PACE), on 21 September 2016 the Assembly’s Committee on Social Affairs, Health and Sustainable Development approved a draft recommendation noting that it would be useful to draw up Directives aimed at safeguarding children’s rights in connection with gestational surrogacy arrangements. It based this position on a memorandum which acknowledged that for-profit gestational surrogacy damages the best interests of the child and should therefore be prohibited, and moreover that it is necessary for states not to violate children’s rights when they take measures designed to safeguard their public order and to deter the use of gestational surrogacy (available at http://website-pace.net/documents/19855/2463558/20160921-SurrogacyRights-EN.pdf/a434368b-2530-4ce4-bbc0-0113402749b5). The memorandum suggested that the States Party prohibit all form of for-profit gestational surrogacy, and that they work together to protect children’s rights whenever they take measures to protect public order and deter the use of this type of practice. However, the draft recommendation was rejected by the Assembly at its 11 October 2016 session. The Assembly took this stance because it considered that the draft tended to condone illegal practices and thus to accept that gestational surrogacy was permissible in principle. The Assembly nonetheless also rejected proposed amendments to the draft that were intended to prohibit all forms of gestational surrogacy in International Law.
11. On the specific level of the parametric framework derived from the ECoHR, the question of gestational surrogacy and of the rights of the persons involved – the beneficiaries, the surrogate, and the child – has as a rule been addressed in the light of the provisions of the Convention’s Article 8 (Right to respect for private and family life). The ECHR has already been called on to pronounce itself in a large number of cases, and a firm body of case law on various aspects of the question is beginning to take shape.
To begin with, the ECHR has drawn a fundamental distinction between the right to private life that pertains to the beneficiaries of gestational surrogacy and the right to private and family life of the children who are born in this way. With regard to the former, the Court in Strasbourg has lent towards the view that there is no violation of the ECoHR, and towards recognising that states enjoy a substantial “margin of appreciation” when they establish a balance between the conflicting constitutional values (dignity of the human person, public order, and the protection of potential surrogates). However, where the children who are born with recourse to gestational surrogacy and the definition of their best interests and how to pursue them in accordance with the Convention and the other pertinent International Law rules (particularly the Convention on the Rights of the Child) are concerned, the ECHR has taken the position that not recognising the filiation, and refusing to award the nationality, of the beneficiary parents (to the child) causes intolerable harm to the right to private life, due namely to the legally undefined situation in which the children are left and which makes it impossible for them to establish the details of their identity as human beings.
This jurisprudential line of thought is important to our analysis on the domestic constitutional-law level, in that there is a difference between, on the one hand, weighing up legal interests when the only confrontation is between the private interests of the beneficiaries and the surrogate and the constitutionally relevant public interests, and on the other, the operation needed to establish the practical accord between those interests at a moment in time after the child’s birth when the whole decision-making process must primarily seek to protect the best interests of the child. The conformation space which is available to states in order to construct a specific solution that is consistent with their particular axiological and evaluative framework is substantially smaller in the second case, where they are required to safeguard a high standard of protection for the fundamental rights of the child.
Be this as it may, we cannot lose sight of the fact that the cases considered by the ECHR present some important differences in relation to the weighing-up process in which the Constitutional Court is required to engage. The ECHR does not engage in an abstract review of the compatibility between legal norms and certain parameters. Unlike the Constitutional Court, on the one hand the ECHR’s reflections concern concrete situations that as a rule possess an international dimension, regarding children who are born abroad as an outcome of gestational surrogacy; while on the other, the judgements it makes when it weighs up the situation are not immediately directed at the admissibility of gestational surrogacy in its own right, in that the cases before it involve children who have already been born, and this implies weighing up the child’s rights as an autonomous subject. In this respect, as the ECHR itself acknowledges, it is not its place to substitute its position for that of the competent national authorities with regard to determining “the most appropriate means of regulating the complex and sensitive matter of the relationship between intended parents and a child born abroad as a result of commercial surrogacy arrangements and with the help of a medically‑assisted reproduction technique, both of which are prohibited in the respondent state” [see § 180 of Judgment of 24 January 2017, Paradiso and Campanelli v. Italy (Application no. 25358/12)].
It is important to begin by referring to a first group of cases that were decided by two Judgments of 26 June 2014 – Mennesson v. France (Application no. 65192/11), and Labassée v. France (Application no. 65941/11) – and two more of 21 July 2016 – Foulon v. France (Application no. 9063/14), and Bouvet v. France (Application no. 10410/14). In all four cases the ECHR was asked to consider whether the non-recognition in France of the filiation set out in birth certificates issued by the authorities of another state in relation to children born with recourse to gestational surrogacy constituted a breach of Article 8, ECoHR. The applicants in those cases – the beneficiary parents in the gestational surrogacy contracts, in situations in which the beneficiary fathers were also the biological fathers – argued that the decision of the French courts not to recognise the children’s French nationality violated the right to respect for family life and the right to respect for the private life of the children, as laid down in Article 8 of the Convention.
The Court accepted that not recognising filiation could effectively imply practical difficulties in the applicants and the children’s family life, to the extent that the children did not legally possess French nationality and documents, but rather the nationality and documents of the state in which they were born. On the other hand, however, it also took the view that the practical obstacles the families had to contend with following the decision not to recognise filiation were not impossible to overcome, inasmuch as they were residing in France with the children and there were no indications of any risk that they might be separated by the French authorities. It consequently found that the French courts’ decisions had not exceeded the boundaries of a state’s internal margin of appreciation, and that the courts had considered the relative weights of the applicants’ interests and the interests of state public order in an appropriate way.
However, the ECHR reached a different decision with regard to the alleged violation of the children’s right to respect for their private life. As the Court began by noting, that right includes the possibility for each person to establish the details of their identity as a human being, including the right to legal filiation. On this level the children found themselves in a legally indefinite situation due to the refusal to transcribe the records of their birth: although the French courts recognised the existence of a filiation relationship between the beneficiaries and the children under the foreign law in question, that relationship was not recognised under French law. The Judges of the ECHR took the stance that this contradiction not only undermined the children’s identity within French society, but also limited the possibility for them to obtain French nationality and to enjoy inheritance rights under French law. The problem was also made more serious by the fact that the male beneficiary in each case was the respective children’s genetic progenitor, which meant that non-recognition of the parent-child relationship between the two under French law took on a shape that was particularly prejudicial to the children’s best interests, inasmuch as one of the essential elements of their identity would necessarily be affected. As a result, the ECHR concluded that the French courts’ decisions to refuse transcription went beyond the margin of appreciation within which the French State was entitled to weigh up the opposing interests, and constituted a violation of the children’s right to respect for their private life.
The second set of decisions concerns Paradiso and Campanelli v. Italy (Application no. 25358/12), which originated in the Italian courts.
At stake here was an Italian couple who had entered into a paid gestational surrogacy contract in Russia, under which a Russian woman was to gestate the child using genetic material from the male beneficiary and a female third-party donor. After the child’s birth, the Russian authorities issued a birth certificate on which the child was recorded as the daughter of the beneficiary couple. However, when the beneficiaries asked for the particulars of the birth certificate to be transcribed onto the Italian civil‑status register, the Italian authorities not only refused the request, but also opened a criminal investigation into the couple on suspicion of forgery of documents and misrepresentation of civil status. DNA testing proved that in fact the child had not been conceived using gametes from either member of the couple, which led to the child being removed from the couple and then adopted by another family. The couple lodged an application before the ECHR, which considered it at two instances.
In its first decision, dated 27 January 2015, the ECHR focused its analysis on the need to balance conflicting public and private interests, with reference to the fundamental principle of the best interests of the child. As such, and with regard to the first decision taken by the Italian authorities (refusal to recognise the birth certificate issued by the Russian authorities, and consequently the parent-child relationship established therein), the Chamber of the Court considered that the authorities had not acted unreasonably, inasmuch as the child did not have any genetic link to the beneficiaries. However, it took a different view of the Italian courts’ decision to remove the child from the beneficiaries’ home. The judges in Strasbourg found that the child’s interests had not been duly taken into account, and that there had been a violation of Article 8 of the Convention.
This decision was overturned on 24 January 2017 by the Grand Chamber of the ECHR, in an 11-to-6 majority decision. The Court took the view that there had never truly been a family life involving the beneficiaries and the child, due especially to the short time for which they had lived together (2 months in Russia and 6 months in Italy) and to the absence of a genetic bond between them. The right to respect for family life was therefore not applicable in casu (§§ 157 and 158).
The Judges did consider, however, that the right to respect for private life should apply to the case, with respect to the aspect of that right that concerned the decision of the “intended parents” to assume parental responsibilities and to develop themselves thereby. They reached this conclusion in the light of both the applicants’ genuine intention to be parents and the existence of emotional and loving bonds between them and the child (§ 163). In other words, the mere absence of a genetic relationship between the intended parents and the child (and also the absence of a long-lasting family relationship) was not deemed an obstacle to considering the parents’ position within the scope of the protection afforded by the right to private and family life enshrined in Article 8, ECoHR.
The Court then examined whether the grounds for affecting that right could be justified on the basis of the conditions provided for in Article 8(2), ECoHR: (i) the interference must be in accordance with the law; and (ii) it must be a step that is necessary in a democratic society in order to ensure certain essential legal interests, especially the defence of public order and of the rights and freedoms of the child [see § 177: “The Court regards as legitimate (…) the Italian authorities’ wish to reaffirm the state’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological bond or lawful adoption – with a view to protecting children”]. In assessing the impact that the irreversible separation of the beneficiaries and the child had on the former’s private life, the Court found that the Italian authorities had weighed up the conflicting interests appropriately, and that the public interests should be deemed to prevail in this case in order to avoid the consolidation in the Italian legal system of a situation which the beneficiaries of the gestational surrogacy had intentionally created in breach of important rules of Italian Law. The ECHR concluded that, having found that the child would not suffer grave or irreparable harm as a result of the separation, the Italian courts had remained within the wide margin of appreciation available to the state, and therefore no violation of Article 8, ECoHR, had occurred.
12. In European Union Law, the questions raised by gestational surrogacy are related to the regime governing the social protection of the parenthood of social or intended parents, namely with regard to the admissibility of (or even need for) extensive interpretation or application by analogy of the rights to adoption leave and to maternity or paternity leave. The Court of Justice recognises that gestational surrogacy poses problems with regard to the question of whether the social rights provided for in EU-Law instruments are applicable to beneficiary women, but tends to consider that, because this is a new reality, it is not yet protected by such instruments. In any case, the Court of Justice does not exclude the admissibility and importance of this form of constituting parental relationships as a precondition for the award of such rights.
For example, in its Judgment of 18 March 2014, C.D. (C-167/12) – a case regarding a request for preliminary review that came to it from the United Kingdom – the Court of Justice held that:
“1) Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (…) must be interpreted as meaning that Member States are not required to provide maternity leave pursuant to Article 8 of that directive to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby (this part of the Court’s Ruling went against the Opinion of the Advocate-General; italics added).
2) Article 14 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, read in conjunction with Article 2(1)(a) and (b) and (2)(c) of that directive, must be interpreted as meaning that an employer’s refusal to provide maternity leave to a commissioning mother who has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex” (italics added)”.
In another Judgment given on the same date, Z. (C-363/12), the Court of Justice confirmed that the abovementioned Directive 2006/54/EC, and namely its Articles 4 and 14, must be interpreted to mean that “refusal to provide paid leave equivalent to maternity leave to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex” (here in agreement with the Advocate-General’s conclusions in relation to the case; italics added). The Court also said that:
“Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a refusal to provide paid leave equivalent to maternity leave or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability” (italics added).
Inasmuch as the dignity of the human being is enshrined as a fundamental parameter of European Union Law in Article 1, CFREU, it must be significant that the Court of Justice has based itself solely on the Directives’ specific wording, system and teleology in order to find that the Directives in question do not recognise the social rights invoked in those cases, but has not questioned the admissibility in principle of the possibility that such rights could be recognised to pertain to the beneficiaries of gestational surrogacy agreements, given the political-legal option adopted in the Directives.
B.3. Gestational surrogacy in Comparative Law
13. Gestational surrogacy has also been the object of wide-ranging internal debate in many countries. In a fair proportion of them, there is a regulatory vacuum with regard to gestational surrogacy procedures: gestational surrogacy contracts are not banned, but their validity and efficacy and the ensuing consequences are not legally recognised either. In such legal orders, if gestation contracts are entered into, the beneficiaries then seek to “validate” the consequences derived from them by resorting to the legal institution of adoption.
The legislative solutions to be found in places where there is an express legal regime can be divided into three fundamental groups. Some legal orders allow and regulate the practice on both a for-profit and/or a free-of-charge basis, directly and automatically establishing legal parental ties between the beneficiaries and the child who has been conceived immediately after the latter’s birth, by law. In others, however, there is an initial recognition of the surrogate as mother, and it then takes a judicial process to award maternal and paternal status to the beneficiary couple. A final group of countries prohibits and punishes the practice of gestational surrogacy.
Indeed, in Romano-Germanic legal orders, prohibition is the typical solution. In fact, this is the rule in the Austrian, French, German, Italian and Spanish legal systems. In Switzerland, this prohibition is established at the constitutional level, where embryo donation is also banned [see Article 119(2)(d), Federal Constitution of the Swiss Confederation, CFCS]. Within the European Union, there are other Member States – e.g. Bulgaria and Malta – that expressly ban gestational surrogacy. The subject has been widely debated in the Scandinavian countries, with Norway clarifying the rules governing the recognition of the paternity of children born abroad by means of gestational surrogacy, despite the fact that the practice is not legal in the country itself. Nor is it legal in Denmark, Finland (where it occurred without any legal framework until 2007, when it was prohibited), or Sweden (where an independent report commissioned by the government in 2016 concluded that a ban was necessary due to the risk of pressures on the surrogate and the lack of knowledge about the practice’s consequences for the children born by means of it). An express prohibition is also in force in four US states: Indiana, Michigan, New Jersey, and New York.
It is also important to note that a substantial group of countries with more permissive legislation in this regard have been adopting some important restrictions. In this respect, some states have now prohibited for-profit gestational surrogacy contracts (e.g. Thailand in 2015, India in 2016). Limitations have also been placed on the subjective universe of the possible beneficiaries of gestational surrogacy, in particular restricting access to nationals and/or foreigners who are legally residing in the country (examples of this include Nepal and India since 2015; also in 2015, Thailand limited free-of-charge gestational surrogacy to married heterosexual couples, with at least one member of the couple having to possess Thai nationality). In this way, many of the countries that were key elements in the international gestational surrogacy market have been limiting the practice and thereby reducing the ability of citizens of other nations to make use of this kind of mechanism.
Turning our attention to the legal systems of a number of Member States of the European Union, we can, however, find examples of various legislative models regarding the practice of gestational surrogacy.
14. In Germany, recourse to gestational surrogacy is not directly prohibited or punished. However, the disapproval with which the law views such contracts can be said to unequivocally result from various provisions in the German legal order, particularly the Embryo Protection Law [ESchG (Embryonenschutzgesetz), see especially § 1(1)(7) and (3)(2) – anyone who carries out artificial insemination or implants an embryo in a woman who is willing to permanently give the child up to third parties after birth (Ersatzmutter) is subject to punishment, but the surrogate and the beneficiaries are not], the Civil Code [BGB (Bürgerliches Gesetzbuch), see especially §§ 134 and 138(1) – nullity of gestational surrogacy contracts – and 1591 and 1592 – maternity is determined on the basis of the fact of the birth, and rules for determining paternity], and the Adoption Law [AdVermiG (Adoptionsvermittlungsgesetz), see especially §§ 13(c) and 14(b) – the mediation of gestation arrangements is prohibited, and mediators are subject to punishment].
At the same time, in their case law, courts have also been deciding that these types of contract are invalid. As is now habitual in the legal orders with Romano-Germanic foundations, many lawsuits concern cases in which the beneficiaries have resorted to gestational surrogacy in countries where the practice is permitted and beneficiaries are allowed to establish legal parent-child ties with a view to the latter’s subsequent recognition in their countries of origin.
One of the most important decisions on this issue is the Judgment of the Federal Court of Justice (BGH) of 10 December 2014 (Case XII ZB 463/13). Bearing in mind the best interests of the child – in this respect, following a guideline outlined by the ECHR – and the absence of any contradiction with German international public order (namely any incompatibility between recognition and fundamental rights), the Court found that there were no impediments to the recognition by a foreign court of the beneficiaries’ (Wunscheltern, intended parents) legal paternity of a child born in the wake of the use of gestational surrogacy. In reaching this view, the BGH saw the following as decisive:
“On condition that it is guaranteed that the gestational surrogacy arrangement [Leihmutterschaft] and its execution in accordance with the law applied by the foreign court comply with the requirements that safeguard the voluntary nature of the surrogate’s decision to undergo the pregnancy and to hand the child over to the intended parents after childbirth, the surrogate’s willingness to go ahead with that handing over is comparable to an adoption. The surrogate’s human dignity is not violated merely by the circumstance that what is at stake is the concrete implementation of a gestational surrogacy (…) And the same thing is true with regard to the child, who would not have been born without the gestational carrier (…). In the event the foreign court verifies the efficacy of the gestational surrogacy arrangement and the establishment of legal filiation with regard to the intended parents within the scope of a procedure that matches the requirements befitting a state in which the rule of law prevails, and in the absence of elements to the contrary, that court decision guarantees that both the surrogate’s decision is free, and that she handed the child over to the intended parents voluntarily.
The surrogate’s situation after childbirth is thus comparable to that of a mother who consents to the adoption of her child. (…)
The surrogate’s human dignity may, on the contrary, be violated in the event the gestational surrogacy takes place in circumstances that do not ensure her voluntary collaboration, or where essential and complete details are not provided with regard to the surrogate’s person, the conditions under which she made herself available to undergo the pregnancy, or about the gestation arrangement (…) or if the proceedings before the foreign court have not respected fundamental procedural guarantees (…).” (Rn. 49-51)
This decision opened the way for couples who are childless for whatever reason to be able to retain in Germany a legal parental relationship established abroad without resorting to the adoption procedure, notwithstanding the inadmissibility of gestational surrogacy contracts in Germany itself [similarly, see e.g. Judgment of the Celle Higher Regional Court (OC) of 22 May 2017, Case 17 W 8/16, which also criticises the contrasting decision of the Braunschweig Higher Regional Court (BC) of 12 April 2017, Case 1 UF 83/13; the latter was the object of appeal to the BGH – Case XII ZB 224/17].
15. In Austria, the Law governing Medically Assisted Reproduction [FmedG (Fortpflanzungsgesetz)] does not contain any express reference to gestational surrogacy, so it is considered that the latter is not admissible in Austrian Law. The criterion for maternity is laid down in § 137(b) of the Austrian Civil Code (AGBG), where the mother is deemed to be the woman who gave birth.
However, this rule was set aside in two Judgments which the Constitutional Court of Austria [VfGH (Verfassungsgerichtshof)] handed down on 14 December 2011 (Case B 13/11-10), and 11 October 2012 (Case B 99/12 ua). The VfGH held that children born abroad by means of gestational surrogacy could enjoy Austrian nationality in situations in which at least one of the beneficiaries is their genetic progenitor. In taking this position, it essentially took into account: (i) the best interests of the child, inasmuch as applying the general rule provided for in § 137(b), AGBG, would mean that the surrogate would be deemed the legal mother of the child to whom she gave birth, forcing her to assume parental responsibility against her will and without taking account of the fact that she had no genetic link to the child; and (ii) that applying the aforesaid norm would not only prevent the child from remaining in the care of his/her genetic parents and exclude him/her from various possible rights (e.g. inheritance rights), but could also cause the child to become stateless in the event that the state of which the surrogate carrier was a national didn’t allow the child to acquire its citizenship (e.g. Ukraine). At the same time, the VfGH considered that, under the terms of Article 8, ECoHR, the right to respect for private and family life includes the child’s right to acquire nationality when there is a kin-relationship between the child and the parents, and that this meant that application of the AGBG norm in order to determine the legal parenthood (and consequently the nationality) of children born by means of gestational surrogacy should be excluded on constitutional grounds.
16. In Spain, the law prohibits the use of gestational surrogacy in absolute terms [Law 14/2006 of 26 May 2006, Article 10 – Surrogacy – (para. 1): “Contracts under which gestation on the part of a woman who renounces maternity rights in favour of the [other] contracting party or a third party is agreed, whether for profit or free of charge, shall be null and void under the law”]. The Law also states that the surrogate must, for all purposes, be deemed to be the mother of the child who is born following the implementation of a surrogacy contract, although it is possible for the male member of the beneficiary couple under the contract to claim paternity of the child, on condition that he donated his gametes for the procedure. Article 221 of the Spanish Penal Code (CP) criminalises various forms of conduct engaged in pursuant to for-profit gestational surrogacy contracts: when the surrogate hands over the child (para. 1); when the beneficiaries receive the child; and various forms of conduct on the part of intermediaries in this type of contract (para. 2).
On the case-law level, we should highlight the Sentence of the Supreme Court (TS) 835/2013 of 6 February 2014, upholding decisions in which other instances had rejected the US authorities’ recognition of the legal parent-child relationship concerning a child who had been born in the USA with recourse to gestational surrogacy using genetic material from a Spanish citizen married to a person of the same sex and from a third-party donor. The Court considered that that rejection was based solely on the type of procedure used (gestational surrogacy), and opined that recognising parenthood in breach of the criteria laid down in Spanish law would harm the dignity of both the surrogate and the minor, “mercantilizing both the gestation and the filiation, ‘objectifying’ the woman and the child”.
17. In France, the legislator expressly prohibited gestational surrogacy in 1994, with the entry into force of the so-called “bioethical laws”, which made a variety of amendments to the Civil Code (CC), the Public Health Code (CSP), and the Penal Code (CP). One of the innovations was the addition of Article 16-7 to the CC, establishing the nullity of any agreement whose object is procreation or gestation on behalf of someone else. This legal solution was designed following an important 1990 decision in which the Court of Cassation (CoC) confirmed the nullity of an association (called “Alma mater”) devoted to the intermediation of gestational surrogacy procedures. The Court considered that the agreements promoted by the association were unlawful due to their object, and contrary to public order because they violated the principle of the inalienability of the status of persons.
Article 227-12(1), CP, criminalises incitement to abandon a child, as follows: “The fact of causing, either for the purpose of profit, or by means of a gift, promise, threat or abuse of authority, the parents or one of them to abandon a child who has been or is to be born shall be punished by imprisonment for six months and a fine of 7,500 euros”. This solution seeks to respond to a reality that is very common in France. The fact is that since the 1980s, the legal institution of adoption has been used as a cover for gestational surrogacy contracts, by means of a simple expedient: a woman agrees to be inseminated with the male beneficiary’s sperm and undertakes that, after the childbirth, she will exercise the right that exists under French law to not be declared the child’s mother (anonymous childbirth – literally, “giving birth under the name X”). The male beneficiary in turn recognises the child and, after he is endowed with parental responsibilities, allows his spouse to adopt the baby. This practice was criticised by the CoC, which annulled the second instance’s decision and confirmed that of the court of first instance, which had refused to authorise the adoption of a child under these conditions (Judgment of 31 May 1991, Case 90.20105). According to the CoC, the practice constitutes a distortion of the legal institution of adoption and an attack on the principles of the inalienability of the human body and of the status of persons.
French Law says nothing on the determination of the filiation of children who are born under surrogacy contracts that are null and void. Faced with this silence, it is the courts that have made this determination in their case law. Since the entry into force of the “bioethical laws”, the cases that have most often come before the French courts in this respect have involved situations in which citizens with French nationality have resorted to gestational surrogacy in countries where it is lawful, with a view to then seeking recognition of the child’s filiation in the French legal system.
To begin with, the CoC denied the transcription of the birth records of children born under these circumstances, considering that the principle that gestational surrogacy was prohibited should prevail over the child’s best interests in order to fight the phenomenon of “reproductive tourism”. To this end, the Court found that recognising the effects of a surrogacy contract would entail a violation of an essential principle of French law – that of the inalienability of the status of human persons – and that denying recognition of the legal parent-child relationship derived from such a contract was therefore legitimate under the French international legal order [Judgment no. 1285 of 17 December 2008, and Judgments nos. 369, 370 (Mennesson) and 371 (Labassée) of 6 April 2011]. Even so, the Court still acknowledged that the non-recognition in France of filiation with regard to the beneficiaries under a surrogacy contract did not annul its existence under US law, nor did it prevent the child from living in France with his/her genetic progenitor and the other beneficiary. The same refusal to transcribe was also justified on the grounds that the process constituted a fraud against the law (Judgments nos. 1091 and 1092 of 13 September 2013, and 281 of 19 March 2014).
However, the ECHR criticised this opposition to the transcription of the birth records of children conceived abroad with recourse to gestational surrogacy contracts (see § 11 above: the ECHR case law regarding Mennesson, Labassée, Foulon, and Bouvet). As a result, the CoC changed its position to one whereby resorting to a gestational surrogacy contract does not, in its own right and in the absence of other factors – and particularly under the abovementioned principles of the inalienability of the status of persons and the prohibition of fraud against the law – justify a refusal to transcribe; transcription of the record of the birth of a child born abroad with recourse to a surrogacy contract that establishes filiation in relation to the biological father must be allowed, on condition that the foreign act meets the formal requirements and is substantially true – i.e. it is not falsified and the facts declared in it match the reality [Judgments (Plenary) nos. 619 and 620 of 3 July 2015]. As noted in the pertinent communiqué issued by the CoC, the records whose transcription was at stake stated that the father was the person who undertook to recognise paternity, and that the mother was the surrogate who gave birth to the child. In other words, the issue was not the transcription of a record in which the legal parent-child relationship established abroad concerned “social parents” or “intended parents” – i.e. parents who, with no genetic relationship with the child, only wanted to assume the corresponding parental responsibilities in relation to him/her.
The latter question was the object of four Court of Cassation decisions dated 5 July 2017, in which it held that, in the case of a child born with recourse to a gestational surrogacy undertaken abroad, the part of the act of registration in which the “social mother” appears as “mother” (for the purposes of taking on parental responsibilities) cannot be transcribed (see Judgments nos. 824, 825, 826 and 827). In other words, under these circumstances the part of the transcription that recognises the biological father’s paternity is admissible, inasmuch as in the light of 2015 case law, a gestational surrogacy undertaken abroad does not per se constitute an obstacle to the transcription of a record that reflects the real facts. At the same time, nor does the existence of that surrogacy per se preclude the child’s adoption by his/her father’s spouse. In reality, one of the effects of the Law of 17 May 2013 (same-sex marriage) is to permit, via adoption, the establishment of a filiation tie between a child and two persons of the same sex (as each other) without any restriction with regard to the means of procreation.
In short, French case law maintains the prohibition on gestational surrogacy, albeit while considering that that prohibition must not – and does not – contradict the interest of the children who were born with recourse to that procedure and reside in France.
18. Greece is currently the EU Member State with the most permissive legislation on gestational surrogacy. The legal norms concerning this practice are set out in Article 1458 of the Greek Civil Code (to which the Article was added by the 2002 Medically Assisted Procreation Law) and Article 13 of Law no. 3305/2005 (“Enforcement of Medically Assisted Reproduction”, EMAR).
Access to the process is permitted in the case of heterosexual couples and single women, when the female beneficiary is not capable of gestating or cannot give birth, whereas same-sex couples are excluded. Both the beneficiaries and the surrogate must be Greek citizens or residents (Article 8, Law no. 3089/2002) – a requisite that has proven essential in distancing Greece from the cases of “reproductive tourism” that have occurred in countries whose laws are not as demanding (particularly the USA, the Ukraine, Russia, and until not long ago, India).
For-profit gestational surrogacy contracts are prohibited, with penal sanctions for whoever participates (as a party to the contract or an intermediary) in gestational surrogacy procedures that are in breach of the legal regime.
The child must be conceived using gametes from at least one of the members of the beneficiary couple, and genetic substitution is banned. The aforementioned Article 1458 makes it clear that it is not permissible for the child to be conceived using gametes from the surrogate. This impediment is of fundamental importance to the Greek legal regime, in that the latter is based on the principle that it would be morally, socially and legally intolerable to oblige a woman to give up a child with whom she shares a genetic connection to another woman. However, the norm is not as clear when it comes to the possibility of using gametes from a third-party donor in cases in which one of the beneficiaries is infertile; in this respect, the majority of legal scholars have been taking the view that, in the absence of an express prohibition, this possibility should be permitted.
Implementation of a gestational surrogacy procedure requires prior judicial authorisation, with the court responsible for verifying that the participants fulfil the legal requisites and that the gestation contract is valid. This is designed to ensure that the procedure is only undertaken legally, and the participants can only go to the clinic to have the procedure once the judicial authorisation has been issued. If a gestational surrogacy procedure takes place without this authorisation, it does not have the legal effects provided for in the EMAR Law and the general Civil Code rule applies instead, which means that legal maternity is attributed to the woman who gave birth to the child.
The current legislation also says that when a gestational surrogacy procedure complies with the law, once the child has been born, his/her mother is presumed to be the beneficiary woman who obtained the judicial authorisation to enter into the surrogacy contract – a presumption that constitutes an exception to the rule mater semper certa. However, for six months after the birth, the surrogate and the beneficiary woman are each entitled to refute this presumption in court, to which end the woman in question must prove that the child was conceived with genetic material from the surrogate, whereupon the latter is judicially declared to be the child’s mother. The Greek regime is thus founded on a core distinction between genetic substitution and merely gestational substitution (which is the only format permitted by law). In the former case, the mother is deemed to be the surrogate; in the latter, the mother is considered to be the beneficiary woman, but only after a court has decided that it is so.
19. In Italy, gestational surrogacy is prohibited by law and criminalised under the terms of Article 12(6) (on forms of conduct that entail carrying out, organising and/or publicising gestational surrogacy, be it for profit or free of charge) of Law no. 40 of 19 February 2014. Although the Constitutional Court of the Italian Republic (CCI) held that those of this Law’s provisions linked to the prohibition of heterologous MAP were unconstitutional in its Judgment no. 162/2014 of 9 April 2014, in the same decision the CCI found that the prohibition contained in Article 12(6) is legitimate.
Having said this, Italian Law says nothing about the legal consequences of entering into this type of contract abroad. In the absence of express provisions regulating the consequences of surrogacy contracts, both doctrine and case law have been taking the view that, where establishing the legal parent-child relationship is concerned, it is appropriate to apply the general principle established in Article 269(3) of the Civil Code, according to which the mother is the woman who gives birth to the child.
The question of gestational surrogacy has been the object of various court cases. As in other legal orders, these have resulted in different decisions, some of which contradict others on the same matter. The majority of the cases that have come before the courts since the passage of the 2014 Law have involved attempts to recognise in Italy the parenthood of children born abroad with recourse to gestational surrogacy. The Italian courts are tending not to recognise filiation established elsewhere on the basis of such contracts (the judgments regarding Paradiso v. Campanelli are an example of this; similarly, in a case in which neither of the “intended parents” had genetically contributed to the child’s conception, see Judgment of the Italian Court of Cassation no. 24001 of 11 November 2014). Besides all this, and albeit in obiter dictum, the CCI has already declared that gestational surrogacy (maternità surrogata) “intolerably offends the dignity of the woman and deeply undermines human relations” (see Judgment no. 272/2017 of 22 November 2017).
20. United Kingdom Law enshrines what one might call an “intermediate solution” with regard to gestational surrogacy. The fact is that the country was one of the first to regulate the practice, with the entry into force of the Surrogacy Arrangements Act in 1985. Today, the legal rules governing gestational surrogacy are essentially divided between that Act and the 2008 Human Fertilization and Embryology Act. The fundamental characteristics of the current regime are as follows: (i) the beneficiaries must be heterosexual or homosexual couples who are married, or are in a civil partnership or a de facto partnership; (ii) surrogacy arrangements cannot be judicially executed against the will of any of the participants; (iii) for-profit surrogacy arrangements are prohibited and subject to criminal punishment; (iv) surrogacy arrangements are not subject to any prior judicial or administrative authorisation; (v) the child must be conceived using gametes from at least one of the members of the beneficiary couple; (vi) genetic substitution (i.e. the use of gametes from the surrogate, which would make the child genetically hers) is prohibited; and (vii) the law enshrines a judicial system for transferring legal parenthood of the child, after he/she is born – as a rule, via a “parental order” issued during the first six months of life – with the surrogate legally deemed to be the mother until then.
The legal ‘parental order’ construct is thus a fundamental element of the solution offered in relation to gestational surrogacy situations. Despite the fact that the child is legally deemed to be the surrogate’s child after the birth, it allows the legal parenthood of the minor to be subsequently transferred to the beneficiaries of the surrogacy arrangement by court order, once the legal preconditions (e.g. the request must be made within six months of the child’s birth; the child must be residing in the United Kingdom, with the beneficiary couple, both when the request is made and when the order is issued; both the surrogate and her spouse must give their consent, which, in the case of the former, is only valid if it is given at least six weeks after the childbirth; and finally, it must be proven to the court that there was no for-profit surrogacy arrangement) have been fulfilled.
This model (which is close to the solutions adopted by five of the thirteen US states that expressly permit gestational surrogacy: Alabama, California, Florida, Texas, and Utah) thus enshrines a compromise solution centred around providing for the best interests of the child in this complex type of procedure. It enables the child to be legally considered the son/daughter of his/her genetic progenitors, who as a rule are the people who had a parental project for him/her from the start. It is also a model that offers strong safeguards for the position of the surrogate, whose informed and conscious consent is required in every phase of the process.
B.4. The Portuguese gestational surrogacy model seen in the light of the dignity of the human person
21. As we have seen, the use of gestational surrogacy is a practice that is present all around the world, raising questions on an ethical level and posing a variety of legal problems. Looking at the requirements derived from the protection afforded to children’s rights on the international level and the prohibition on mercantilizing the human body and its parts, and analysing the applicable framework within the legal systems of other states, together enable us to outline an elucidative background to the type of axiological and legal questions linked to this kind of procreation. This is a borderline and non-consensual issue with regard to the delimitation of ethically, culturally and socially accepted forms of procreation, within the scope of which interests that were in harmony not long ago can now appear in opposition to one another.
It therefore comes as no surprise that, in the legal systems which expressly enshrine human dignity as a fundamental and inviolable legal value, there arises the question of whether this principle is compatible with the principle of gestational surrogacy at the more conceptual level of its definition as a legal institution with certain features. At present, Article 1, CFREU, taken in conjunction with open clauses on fundamental rights or with directives that require interpretations in accordance with it (and without prejudice to the scope of application provided for in Article 51 of the Charter itself), means that this is true not only for the European Union, but for all its Member States as well. The question can be posed directly, with reference to the solutions adopted in the internal order, or indirectly, with regard to problems such as recognition of a legal parent-child relationship established abroad – for example, there have been cases in this respect in Germany and Italy (and, on the same analytical level, but with no immediate reference to the issue of compatibility with human dignity, in France as well).
Where Portugal is concerned, the question is directly posed in the present case, inasmuch as one of the parameters which the petitioners argue should be used to review the constitutionality of Article 8 of the LPMA is the dignity of the human person as provided for in Articles 1 and 67(2)(e) of the Constitution of the Portuguese Republic. The fact is that, in the petitioners’ opinion, gestational surrogacy consubstantiates an unacceptable mercantilization of a human being, both with regard to the surrogate, whose body would be turned into an object in the beneficiaries’ service, and in relation to the child, who would become the object of a transaction before and after he/she was born.
While Article 67(2)(e) was designed to resolve the generic problem of the admissibility of MAP techniques, it also makes it very clear that this normative solution does not recognise a right to any and every procreation that is made possible by the current state of the applicable techniques, given that it immediately excludes any form of assisted procreation which harms the dignity of the human person (see e.g. GOMES Canotilho and VITAL MOREIRA, Constituição da República Portuguesa Anotada, vol. I, 4th ed., Coimbra Editora, Coimbra, 2007, note VII on Article 69, pp. 869-870). Determining just what can damage that dignity in this context is thus an element that is indispensable to an adequate understanding of this constitutional requirement for regulation. In this respect, Ruling no. 101/2009 says the following:
“As we can see, the constitutional legislator didn’t limit itself to imposing a duty to regulate medically assisted procreation. By requiring that the matter be regulated ‘in such a way as to safeguard the dignity of the human person’, it also provided a normative reference, an indication of a principle, with which the ordinary legislator must comply. (…)”
It is thus necessary to determine the substantial meaning that must be attached to the reference to safeguarding human dignity, in that the delimitation of the margin of appreciation within which the legislator is free to shape the regulations governing MAP is dependent on that meaning. As we have already mentioned, gestational surrogacy presupposes the use of a heterologous MAP technique; what then makes it different is the use of the body of a woman other than the female beneficiary of the process (see Opinion no. 87/CNECV/2016, no. IV.4, p. 15).
In other words, given Article 8, LPMA, this Court must begin by reviewing whether, when it passed that precept, the legislator respected the constitutional limits which provide the grounds for framing its actions in this field – namely those derived from the dignity of the human person. As such, the first – and fundamental – question of constitutionality that poses itself with regard to gestational surrogacy is whether, as the petitioners argue, the transactions that are provided for in the Law and whose object is the temporary use of the body of one human being (the surrogate) to conceive another (the child who is to be born by means of that form of procreation) are or are not incompatible with the dignity of the human person.
22. It is important to reemphasise both the key structural importance and the legitimating function that human dignity possesses as a foundational principle of the Portuguese Republic: the Republic is a democratic state based on the rule of law because it is founded on the dignity of the human person and on the will of the people (Articles 1 and 2, CRP). However, the will of the people is subordinated to the dignity of the human person; “the [will of the people] is not placed in opposition [to the dignity of the human person] as a principle with which [the latter] must be harmonised, inasmuch as it is the very constitutional idea of dignity that demands [the former] as a means of its own fulfilment […The] dignity of the person possesses axiological precedence, and the will of the people is therefore legally subordinated to it – indeed, the meaning of the prevalence of the fundamental rights over the law is none other than this” (see ANTÓNIO CORTÊS in JORGE MIRANDA and RUI MEDEIROS, Constituição Portuguesa Anotada, tome I, 2nd ed., Coimbra Editora, Coimbra, 2010, note III on Article 1, pp. 77-78; also see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note VI on Article 1, p. 198, in which dignity is referred to as a “limiting value”).
This is also why there is a connection between human dignity and the system of fundamental rights: the latter concretely implements the juridicity of the state because the former is one of the criteria that legitimate state power. The dignity of the human person is thus the “founding ‘etymon’ [in the sense of root] of both the Republic and the fundamental rights” (Ruling no. 121/2010), and therefore, “the system of fundamental rights possesses a unity of meaning that is organised around the idea of people’s dignity” (Ruling no. 465/2012). However, when looking at the dignity of the human person in its own right, this Court sees it in terms of an objective, autonomous dimension:
“By calling on the principle of the dignity of the human person within the context of medically assisted procreation, the precept refers us to that established in Article 1 of the Constitution, which states that ‘Portugal is a sovereign Republic, based on the dignity of the human person and the will of the people and committed to building a free, just and solidary society’. […] In this sense, the principle of the dignity of the human person appears, not as a specific fundamental right that could serve as the basis for invoking subjective legal positions, but rather as a legal principle that can be used in the concrete implementation and the delimitation of the content of constitutionally enshrined fundamental rights or the uncovering of unwritten fundamental rights” (Ruling no. 101/2009).
As Maria Lúcia Amaral says, “the principle of the dignity of the human person ends up possessing a content that is so broad (at the end of the day, identical to one of the elements of the tradition of a state based on the rule of law) that it does not attain sufficient density to be a direct foundation for subjective legal positions” (see the same author, op. cit., “O princípio da dignidade da pessoa humana na jurisprudência constitucional” in Jurisprudência Constitucional, no. 13, 2007, pp. 4 et seq., pp. 4-5; also see REIS NOVAIS, A Dignidade da Pessoa Humana, vol. I, Almedina, Coimbra, 2015, pp. 78 et seq.). Nonetheless, as is underlined in the above excerpt from Ruling no. 101/2009, this does not prevent the principle from possessing a value of its own and performing several important functions in the fundamental rights field – to begin with, with regard to the principle of equality [see Article 13(1), CRP], and also, for example, in relation to the identification of unwritten rights or as a criterion for interpreting and weighing up certain issues in conflicts between rights (see references in BENEDITA MAC CRORIE, “O princípio da dignidade da pessoa humana na Constituição da República Portuguesa” in AFONSO VAZ, CATARINA SANTOS BOTELHO, LUÍS HELENO TERRINHA and PEDRO COUTINHO (Coord.), Jornada nos Quarenta Anos da Constituição da República Portuguesa – Impacto e Evolução, Universidade Católica Editora – Porto, 2017, pp. 104 et seq., p. 108) – all of which must be undertaken in harmony with the necessary articulation of its multiple dimensions (“dignity as an intrinsic dimension of the human being, dignity as a dimension that is open and requires concrete forms of implementation [and] dignity as an expression of reciprocal recognition” – see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note VIII on Article 1, p. 199).
The latter authors point out that although the inherent value and the specific normative dimension of human dignity – the intrinsic, autonomous dimension of each human being – constitute a “given”, it is not “a fixist, unvarying and abstract one [inasmuch as it is articulated] with each person’s freedom to share and guide their life in accordance with their own spiritual project, which in turn and notwithstanding the existence of an anthropological constant, indicates the need for there to be an openness to the new demands of the human person itself” (see idem, ibidem). This dialectic between the intrinsic/permanent that constitutes a prius on the one hand and the openness inherent in the person’s historical/cultural nature on the other is not easy to implement in positive law, all the more so within the framework of a democratic, plural society.
The Constitutional Court has acknowledged precisely this, both by refusing to use a system of ethical, moral or religious values or a given philosophical/cultural tradition as the basis for identifying human dignity, in a way that would see it as an axiologically fixed or “closed” concept; and by refusing to consider that it is just a “receptor norm” for philosophical conceptions that are predominant in society (and to that extent, that it is a concept which is totally open and without a content of its own). At the same time and while taking every precaution in its stance, the Court has not excluded the possibility that such a principle could operate as a parameter for gauging unconstitutionality, acknowledging, however, that where concrete implementation in this context is concerned, primacy pertains to the democratic legislator (see e.g. Rulings nos. 105/90, and 359/2009). When faced with concrete legal solutions, the Court attaches particular importance to the “convergence of legislative solutions in legal systems which share the same basic ‘legal civilisation’ as the Portuguese legal system – a civilisation that precisely shares the same idea and fundamental assumption of the ‘dignity of the human person’ ” as “an additional (particularly significant), indication or factor” which suggests that a given legal solution “is not in violation of that principle or essential legal assumption, as it is interpreted within the Portuguese constitutional framework” (in this sense, see Ruling no. 105/90).
It is against this problematic background that the Constitutional Court has been lending concrete form to the aforementioned intrinsic dimension of human dignity, by assessing its violation and recognising an important heuristic value in Günter Dürig’s so-called “object formula” (“human dignity is violated when a concrete human being is degraded [herabgewürdigt] into an object, to a simple means [to an end], to something fungible”). It did so in Rulings nos. 130/88, 426/91, 89/2000 and 144/2004, among others. If it is inherent in the human being in each of us – i.e. in any individual member of the human species – to have the “right to have rights”, and thus to possess the quality of a subject who possesses the rights which allow for an autonomy in the definition and pursuit of one’s own goals – the fundamental rights – then it necessarily ensues that no one, as a human being, can be degraded to a mere object, first and foremost by the public powers, which is to say that a person cannot be treated as a simple means to achieving ends that are alien to him or her.
Following on from this assertion, the criterion for determining any violation of human dignity is thus founded on the prohibition on a person being reduced to a mere instrument of other people’s ends, and to that extent, considered and treated as a mere object (see REIS NOVAIS, A Dignidade da Pessoa Humana, vol. II, Almedina, Coimbra, 2017, p. 112). In other words, “the unconstitutionality comes from the fact that the person is used solely as a means, and the focus is thus functionally placed on the definition of what is a legally reproachable treatment of the person as a means, as an object – i.e. on the meaning of this objectification or instrumentalisation” (see idem, ibidem, p. 113).
On the other hand, and given that the principle of the dignity of the human person also postulates the intrinsic value of each human being, assuming his/her integrity and a capacity for self-determination derived from an ethical autonomy, it is necessary to underline the importance of the subject’s free, informed consent with regard to actions or situations which are imposed on him/her, to which he/she has not consented and which would harm his/her dignity. The fact is that even if we acknowledge that there can be exceptions, and on condition that it is temporary and not irreversibly damaging for the subject’s future self-determination, this consent is itself a legitimate means of affirming human dignity; and this aspect of human dignity – which can also be present within the framework of the relationships between private individuals and the public powers – is essential to the establishment of a framework of horizontal relationships that are based on the subjects’ autonomy and are often governed by norms with a permissive nature.
Finally, it is important not to overlook the abovementioned importance of both International and Comparative Law when it comes to setting a standard that is as universal as the dignity of the human being (see Ruling no. 105/90 as referred to above, and the excerpt from Ruling no. 101/2009 quoted above in § 6). Taking them into account makes it possible to avoid “parochial prejudgements” (parochiale Befangenheit) and an “exacerbation of [national] legal peculiarities”:
“If one doesn’t want to determine the defence of human dignity solely on the basis of the national context and particular historical conditioning factors, one must turn to Comparative Law. This is especially important to the extent that a society is losing the homogeneity of its values [Werthomogenität]. In particular, looking at the legislation and case law of other countries with high standards in terms of the requirements with regard to a state based on the rule of law (e.g. the EU Member States, the USA and other states that belong to the Anglo-American legal family) ensures a significant gain in legitimacy and rationality. Precisely when one takes human dignity seriously as an intangible and universally binding standard, one must not hastily criticise legal regulatory models of other modern states based on the rule of law as being harmful to that dignity. Otherwise, one would run the risk of seeing human dignity coming to accommodate purely national scales of values” (in this sense see MATTHIAS HERDEGEN in MAUNZ-DÜRIG Grundgesetz Kommentar, C.H.Beck, Munich, Lfg. 55, May 2009, Art. 1 Abs. 1, Rn. 43).
B. 4.1. The question of the dignity of the gestational surrogate
23. Where the gestational surrogate is concerned, the petitioners consider that regardless of whether it is free of charge or for-profit, a gestational surrogacy agreement implies that she is instrumentalised in the service of a desire on the part of the beneficiaries to have children, “and that she practically disappears as a subject of rights”: the “surrogate mother becomes an incubator in the service of the beneficiaries” in an “objectification process” that is incompatible with her dignity. Although they acknowledge that, within the exceptional framework within which the Law allows gestational surrogacy, the surrogate also fulfils “a praiseworthy spirit of altruism and solidarity”, they attach less value to this fact because the reality is different in the great majority of cases – a reality that is reflected in the pejorative expression “wombs for rent”. In short, from their perspective, the violation of the dignity of the human person is a necessary consequence of gestational surrogacy, in that it co-involves an unacceptable reproductive exploitation and use of the woman’s body.
24. First of all, it is important not to disregard the free nature of gestational surrogacy contracts. As in the case of the LPMA, only gratuitous gestational arrangements are admissible in Greece and the United Kingdom, and in many other countries the attempt to limit the international gestational surrogacy market entails a prohibition on for-profit arrangements. Moreover, the absence of payment is an additional guarantee that the surrogate’s actions are truly free and as such an expression of her autonomy.
No less important and significant is the different meaning and scope which free gestational surrogacy acquires for the surrogate, especially in a legal framework like the Portuguese one, in which this method of procreation is only permissible on a subsidiary basis (“in cases in which there is no uterus, or that organ is damaged or suffers from an illness in such a way as to absolutely and definitively preclude pregnancy”). The fact is that her intervention in the beneficiaries’ parental project is co-constitutive, in that the project cannot be founded solely on their wish to have children. An active solidarity on the surrogate’s part, reflected in her will that the concrete beneficiaries be the parents of the child to whom she then gives birth, is also essential. In order for there to be a gestational surrogacy that matches the provisions of the LPMA, the beneficiaries must want to be parents and the surrogate must want them to be parents. This is exactly why, by agreeing to actively collaborate with the beneficiaries, and despite subjecting herself to MAP techniques, the surrogate does not undertake a parental project of her own – to be the mother of the child to whom she gives birth – but instead seeks to make it possible for the beneficiaries’ parental project to become a reality (see § 8 above). To precisely this extent, without ceasing to be the beneficiaries’ own project, this parental project is alsosharedby the surrogate: the beneficiaries and the surrogateallwant the former to have a child who is their son/daughter, notwithstanding the fact that it was the latter who gave birth to him/her [see Article 8(1) and (7), LPMA]. And it is on the basis of this meeting of wills – more precisely, by recognising the meeting of wills, on the assumption that it is valid and effective – that the Law makes provision for a special regime with regard to the establishment of parentage, which sets aside the general regime laid down in Article 1796(1), CC.
On the other hand, besides the fact that we cannot analyse a legal institution solely on the basis of its infirmities – as if its healthy operation is impossible or even unimaginable or should be considered to be wholly unrealistic – the truth is that the legislator established minimum conditions designed to ensure the fulfilment of the positive requisite that gestational surrogacy must be free of charge: payments and donations to the surrogate are prohibited, except in order to compensate her for expenses that are effectively incurred [Article 8(5), LPMA], and there can be no economically subordinate relationship between the parties to the gestational surrogacy contract [Article 8(6), LPMA]. There is nothing in the Law to prevent the text of the gestational contract from further strengthening these features, albeit it does not require the inclusion of any type of clause on this topic either. In any case, the law imposes both civil and criminal penalties on both those responsible for for-profit contracts of this kind and third parties who derive economic gains from them [Articles 8(12) and 39(1), (2) and (6), LPMA]. Especially with regard to the criminal penalties, we should note that attempts are punishable, and that in any case, these are [so-called] “public crimes”, which means that a mere report or suspicion can lead to the opening of a criminal investigation, thereby mobilising the most effective public means of law enforcement.
In short, the fact that the gestational surrogacy enshrined in the Portuguese legal system must be free of charge is one of its essential characteristics, and the legislator adopted effective measures designed to ensure that minimum standards are complied with. Our analysis of the format’s constitutional admissibility must thus pay particular attention to this feature. Indeed, within its own specific field of action, the CNECV also reached this conclusion in its 2012 review of this aspect [see Opinion no. 63/CNECV/2012, point 2(a), p. 9, which says that “the requirement that it be absolutely free of charge” is decisive to the acceptability of gestational surrogacy, despite all the risks and uncertainty].
Given all of the above, the petitioners’ argument with regard to the economic exploitation of the surrogate cannot be upheld in the case of the Portuguese gestational surrogacy model.
25. Secondly, we must analyse the argument regarding the instrumentalisation of the gestational surrogate, according to which she is reduced to the status of a simple means to an end – an incubator, which is to say an object at the disposal of a third party’s reproductive interests – and her dignity appears to be “captured by freedom”; something that would lead to a new and serious form of discrimination against her compared to a man, because it would be possible for her to be treated as an object, and consequently put in a position of clear inferiority in relation to men (see PAULO OTERO, “A dimensão ética da maternidade de substituição” in Direito e Política, no. 1, October-December, 2012, pp. 82 et seq., pp. 85-86; similarly, see JOÃO LOUREIRO, “Outro útero é possível: civilização (da técnica), corpo e procriação – Tópicos de um roteiro em torno da maternidade de substituição” in AAVV (Coord.), Direito Penal: Fundamentos Dogmáticos e Político-Criminais – Homenagem ao Prof. Peter Hünerfeld, Coimbra Editora, Coimbra, 2013, pp. 1387 et seq., p. 1413: “the surrogate is degraded to the role of incubator, in a clear instrumentalisation”).
The same argument is expanded on and reinforced in the perspective taken by Estrela Chaby: gestational surrogacy offends the surrogate’s dignity, because it implies not only the instrumentalisation of a part of the woman’s body, but the use of her whole body for the entire duration of the gestation. Given that the body cannot be separated from the person, and that pregnancy is not a “medical condition”, but rather a state during which the woman retains and makes use of her freedom to live, the use of another person in every dimension of life is inherent in gestational surrogacy. Because of this, surrogacy contracts usually specify a series of duties and obligations which the surrogate will have to fulfil (see the same author., “Direito de constituir família, filiação e adopção…” op. cit., pp. 353-355). In the words of Sylviane Agacinsky, whom Estrela Chaby closely follows in this particular respect, “(…) even if it couldn’t be mercantilised, the mere use of the womb [to the benefit of a third party] is contrary to dignity, because it turns the very existence of a human being into a means in someone else’s service” (SYLVIANE AGACINSKY, Corps en Miettes, Flammarion, Paris, 2013, p. 93). In this sense, gestational surrogacy implies a right to the use of the other that is contrary to the dignity of the human person.
However, these positions don’t take the surrogate’s active role into account, ignoring her motivations and overvaluing the factors which condition her life as a result of a pregnancy.
26. Where this second aspect is concerned, one cannot deny that pregnancy, as a biological, psychological and potentially emotional process, is a state of the woman as a whole – one which, among other things, is projected onto her interaction with both those who are closest to her and society in general. Because of this, attaching value to that state and simultaneously acknowledging the increased vulnerability associated with it, the Constitution provides for a special protection status for women while they are pregnant [Article 68(3)]. However, a pregnant woman’s life doesn’t have to be limited to her pregnancy: besides the forms of care required by that state, the woman retains her free self-determination and can go on “living her life” as she did before she was pregnant. While it is true that “every day a pregnant woman takes innumerable decisions in which she is not disassociated from her state, but which are decisions of her life, bearing in mind that she is pregnant” (see ESTRELA CHABY, op. cit. pp. 354-355), it is no less true that the direction of her life doesn’t have to change because she became pregnant: she can go on working, looking after her family or engaging in leisure or educational/training activities as she had been doing until then. Assuming the opposite amounts to a reduction – albeit temporary – from the condition of a free, active and socially committed (as worker, entrepreneur, creator or mother) woman to one of incapacitation. While pregnancy does imply vulnerability and does demand special care, it does not constitute an incapacity. Essentially speaking, a pregnant woman continues to be as free and self-determined on the intellectual and physical (including the sexual dimension) planes as she was before, and the aforesaid forms of care represent no more than limited conditioning factors, which are justified in order to ensure the well-being of the both the child who is going to be born and the pregnant woman herself.
It is therefore manifestly excessive to consider that gestational surrogacy implies a subordination of the surrogate to the interest of the beneficiaries in every dimension of her life, as if one were dealing with a situation of appropriation equivalent to a “temporary slavery” to which she has consented. Seen in overall terms, the surrogate’s “existence” does not have to be placed in the beneficiaries’ service, and consequently it is not the whole of her life that is instrumentalised. Nor is there a right on the part of the beneficiaries to the use of the surrogate. The commitment she undertakes to them is limited to taking the care that is normal in any pregnancy, in order to be able to fulfil the obligation to hand over the child after the birth. This is why the contract cannot impose “behavioural restrictions on the gestational surrogate” or “norms that infringe on her rights, freedom and dignity” [Article 8(11), LPMA].27. On the question of the surrogate’s instrumentalisation, one cannot disregard either the cause/function of the gestational surrogacy contract (the reason why the legislator autonomised it and excepted it from the general prohibitive rule established in Article 39, LPMA), or the motivations why and the conditions under which she enters into it – aspects that are both wholly and singly decisive to doing away with the idea of her degradation (Herabwürdigung).
As provided for in Article 8(2) to (6), LPMA, gestational surrogacy seeks to create conditions that enable the beneficiaries, who, due to the absence of the conditions needed to undergo a pregnancy, are confronted with the impossibility of procreating – an impossibility that can be absolute or relative – to nonetheless try to do so with the voluntary collaboration of a third person. It should be emphasised that the requirement for the presence of gametes from at least one of the beneficiaries imposed in Article 8(2), LPMA, means that gestational surrogacy is only admissible as a subsidiary means for the beneficiaries to (try to) achieve reproduction – i.e. for them to manage to have a child who is at least partly their biological descendant; and not as a path whereby the intended parents simply establish a legal filiation tie with a child.
As such, within a framework in which heterologous MAP was already permitted on a subsidiary basis [see Article 10(1), LPMA, and the assessment made in Ruling no. 101/2009], despite the change in paradigm derived from the new Article 4(3), LPMA, the legislator also intended to make it permissible – only in the aforementioned cases and thus on an exceptional basis – for the gestational surrogate to willingly become pregnant, for example with recourse to an embryo implant or other, equivalent MAP techniques (Articles 27 and 47, LPMA).
Gestational surrogacy thus possesses a positive constitutional relevance, as a means of fulfilling constitutional-law interests that pertain to the beneficiaries, who have been prejudiced for health-related reasons. The rights that are at stake are namely the right to form a family and the right to procreate.
The correlation between these rights was acknowledged in Ruling no. 101/2009, when the Court accepted that “MAP may perhaps also be considered a form of exercising the fundamental right to form a family provided for in Article 36(1) of the Constitution”. This position was along the lines of that argued by Canotilho and Moreira, who say that:
“The right to form a family implies not only the right to set up life together and the right to marriage, but also a right to have children (…); a right which, although it is not essential to the concept of family and doesn’t even presuppose it, is naturally associated with it (see the title of this precept). That includes (…) the freedom to procreate (…).
Problematic is the question of the extent to which the right to have children involves a right to heterologous artificial insemination (…) or to gestation by a “mother for hire”. However, it would appear that the present constitutional provision can only offer a degree of help with the question when it is taken in conjunction with the principles of the dignity of the human person and a democratic state based on the rule of law, which simultaneously guarantee both an irreducible personal autonomy and its limits (…)” (see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note X on Article 36, p. 567).
RUI MEDEIROS goes in the same direction:
“In this context [that of the provision contained in Article 36(1) which encompasses both the conjugal family, and beside it, the family made up of parents and children], the right to form a family signifies that everyone, irrespective of whether they are married or not, has a fundamental right to procreate. (…). Naturally, as is the case with the rights, freedoms and guarantees in general and notwithstanding the provisions of the first part of Article 18(2), the right to procreate is not absolute. [One can therefore pose the question of whether that right applies] from the point of view of access to medically assisted procreation techniques, in terms of the issue of identifying the limitations on the permissibility of recourse to the aforementioned techniques (…). Be this as it may, the restrictions on the right to procreate are subject to the general constitutional limits and to the principle of proportionality in particular” (see: Rui Medeiros in JORGE MIRANDA and RUI MEDEIROS, Constituição…, op. cit., note VIII on Article 36, pp. 813-814; the same author, ibidem, note XII on Article 67, p. 1366, says that MAP is relevant to the effective implementation of the fundamental right to procreate, without prejudice to the need to also acknowledge that there is no “right to all and every [form of] procreation that is possible given the current state of the technique”, inasmuch as, quite apart from anything else, one must exclude those that harm the dignity of the human person).
Especially with regard to the question of whether the law should permit heterologous MAP undertaken on a subsidiary basis, the Court considered in its aforementioned Ruling no. 101/2009 that that permission still falls “within the legislator’s free margin of appreciation”, inasmuch as it promotes the right to the development of one’s personality and the beneficiaries’ right to form a family, in a way which doesn’t affect the future child’s right to personal identity. While there can be no doubt that procreation by means of a sexual act is an obvious dimension of the right to form a family enshrined in Article 36(1), CRP, one can say with no less certainty that the scope of the protection afforded by this constitutional norm does not include a subjective right to every and any form of assisted procreation, given that the use of MAP is objectively delimited a priori by the limits imposed by the dignity of the human person, as provided for in Article 67(2)(e), CRP. It is clear that establishing such a limit only makes sense if the use of some of those techniques is included within the scope of the constitutional right to form a family.
Having said this, and as we say above, the constitutional norms do not mean that those techniques must include all the techniques developed by science. It is even possible to doubt whether the fundamental right set out in Article 36(1), CRP encompasses any heterologous procreation techniques at all. Indeed, this was the understanding that ended up prevailing in the aforementioned Ruling no. 101/2009; but that view did not then prevent the Court from admitting that such a technique could be included in the law, inasmuch as the fact that the technique is not required by the Constitution does not mean “that it should be deemed contrary to the Constitution”.
Notwithstanding the increased complexity caused by the fact that the process includes interventions by both the surrogate and the gamete-donors, these same thoughts can be carried over into a justification of the admissibility in principle of gestational surrogacy, inasmuch as the latter seeks to make it possible to concretely implement a parental project, and consequently tends to favour access to a constitutionally relevant value – in this case, a family with children.
What is more, if we look at the inability to become pregnant in the cases provided for in Article 8(2), LPMA, in the light of a social concept of disability, as enshrined in the second paragraph of Article 1 of the Convention on the Rights of Persons with Disabilities (CRPD) (“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”), gestational surrogacy can also constitute an important factor for social integration [see Article 71(1) and (2), CRP; with regard to the CRPD, see Resolution of the Assembly of the Republic no. 56/2009 and Decree of the President of the Republic no. 71/2009; and on the social concept of disability, see GERALDO ROCHA RIBEIRO, “O sistema de proteção de adultos (incapazes) do Código Civil à luz do artigo 12.º da Convenção das Nações Unidas sobre os Direitos das Pessoas com Deficiência” in Estudos em Homenagem ao Conselheiro Presidente Rui Moura Ramos, op. cit., pp. 1105 et seq., pp. 1107-1108 and 1111-1112). This perspective is accepted in European Union Law, for example (see Judgment of the Court of Justice of 18 March 2014, Z. (C-363/12), nos. 76 and 78-81; and especially, point 93 of the Advocate-General’s conclusions in that case). Apart from this, albeit from a medical perspective, this was an idea that was also present in initiatives that culminated in the passage of Law no. 25/2016 (see Member’s Bill no. 131/XII, 2012, submitted by the Socialist Party: the “primordial interest [that can be fulfilled] by treating the illness of infertility implies that in certain cases there should be exceptions to the ban on the use of surrogate motherhood [when the latter is] the last alternative to overcoming the illness of infertility”).
Having said all this, we would reiterate that none of it implies acceptance of the existence of a fundamental right to procreation by means of gestational surrogacy, which in any case the state would never be in a position to fulfil directly, given the fact that the voluntary intervention of a woman who is willing to undergo a pregnancy on the beneficiaries’ behalf and hand the child over after he/she is born is an essential element of the process. Even if one were to admit at this point, solely for argument’s sake, that gestational surrogacy is compatible with the need to safeguard human dignity as required by Article 67(1)(e), CRP, the truth is that the understanding that access to heterologous MAP is not imposed by the Constitution (see Ruling no. 101/2009) prejudices an imposition of this kind with regard to gestational surrogacy, given that the latter presupposes use of the former. Be that as it may, the relative newness of this practice and the uncertainty as to the long-term effects of its use also suggest that this legal “institution” should not be seen as a constitutional requirement. The Court thus takes the more modest view that the exceptional permission to resort to gestational surrogacy under the terms of Article 8, LPMA, represents an option on the legislator’s part which, in addition to not being arbitrary, favours legal interests to which the Constitution affords its protection, and as such should not be set aside without strong reasons for doing so.
28. Analysing the gestational surrogacy model or profile enshrined in Article 8, LPMA – one which possesses a subsidiary, exceptional and merely gestational nature, presupposes the autonomous consent of the interested parties with a view to ensuring that their participation is voluntary, and must be formalised by means of a contract that has to be free of charge and is subject to administrative authorisation (see § 9 above) – from the surrogate’s perspective, we should begin by remembering – and highlighting – that the surrogate is (also) an active subject of the whole process and that her voluntary participation is essential to its concrete implementation. As we said earlier, the surrogate and the beneficiaries reciprocally commit themselves to a project which, in many essential respects, is shared by all of them (see § 24 above). And the main motivation for the surrogate’s intervention must be as a response to an altruistic impulse, a feeling of solidarity towards someone who, although they want to have children and may even have part of the genetic material that is indispensable to doing so, cannot have them because there is no uterus or that organ is damaged or suffers from an illness in such a way as to absolutely and definitively preclude pregnancy. I.e. – and this is a second aspect of the question – the surrogate agrees to participate in the project because she wants to devote herself to the task of helping others overcome difficulties that they cannot resolve on their own.
To this extent, the gestational surrogate acts out a life project of her own and in which she expresses her own personality. As a consequence, her intervention in the beneficiaries’ parental project is not exhausted in the benefit it provides them; she also derives benefits for her personality, confirming or developing the way in which she feels she should be determined in relation to herself and others. Her pregnancy and the subsequent childbirth are both an instrument or means and a necessary and sufficient condition for an act of donation or surrender which raises her up in her own eyes and according to her own ethical and moral standards; and which also elevates her in the eyes of the people she helps. Now the thing is that this elevation of the gestational surrogate in her own eyes, in those of the beneficiaries, and perhaps of those of the circle of people closest to her, is the opposite of her degradation.
The fact is that, when understood as an action motivated by an active solidarity (or even as a gift given out of friendship or love), gestational surrogacy cannot fail to be seen as an exercise of the freedom to exteriorise one’s personality or to act in accordance with one’s own life project and personal vocation and capacities [one of the dimensions of the right to the development of personality enshrined in Article 26(1), CRP (see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note III on Article 26, pp. 463-464)], which is indissociable from the freedom of action needed for a self-determined subject to be able to shape his/her own identity – i.e. with/from the dignity that pertains to a human being. Guilherme de Oliveira goes in this direction when he says that the fundamental right enshrined in Article 26(1), CRP, must be weighed up within the overall framework of the discussion on the admissibility (and the legitimacy of the imposition of the respective limits) of the use of MAP techniques, inasmuch as “the decision to procreate has major implications in various domains – psychological, physiological, other health-related, economic – and cannot but be a decision that plays a key structuring role in individual autonomy and personal freedom” [see GUILHERME DE OLIVEIRA, “Restrições de acesso à parentalidade na medicina de reprodução” in Lex Medicinae, Year 10, no. 20 (2013), p. 7].
As such, the human dignity of the woman who takes on the role of gestational surrogate is not violated; on the contrary, her participation in the gestational surrogacy affirms a freedom of action which, at the end of the day, is founded on that same dignity, in that the “various different rights set out in Article 26 are, in any case, typical hypotheses in the implementation of one and the same fundamental principle of respect for the dignity of the person” (in this sense, see RUI MEDEIROS and ANTÓNIO CORTÊS in JORGE MIRANDA and RUI MEDEIROS, Constituição…, op. cit., note III on Article 26, p. 608). As we said earlier on the subject of the “object formula” (see § 22 above), an instrumentalisation that is harmful to the dignity of the human being cannot be understood mechanically; it instead requires us to assess the concrete impact on each person’s intrinsic value, and very particularly on their capacity for self-determination and the free and responsible affirmation of their personality (pointing to the need to distinguish between the terms under which each person is instrumentalised or allows themselves to be instrumentalised, see REIS NOVAIS, A Dignidade da Pessoa Humana, vol. II, op. cit., pp. 122-123). Only an instrumentalisation that annuls or fails to consider that personal autonomy, in the present or for the future, can be deemed degrading because it reduces the person to a thing or an object and thus violates human dignity. However, this is not what happens with the gestational surrogate, inasmuch as she, acting as such and in accordance with the provisions of Article 8, LPMA, acts in the exercise of a freedom of action based on her own dignity.
In Ruling no. 101/2009, with regard to the legal choice not to criminalise gratuitous surrogate motherhood, the Court had already considered that:
“Free surrogate motherhood tends to be seen as less reproachable [than the for-profit kind], because it reveals altruism on the surrogate’s part and her solidarity in relation to the infertile woman, and because there is no disrespect on the latter’s part in relation to the former’s dignity, inasmuch as there is no attempt here to instrumentalise a person in economic need by setting a ‘price’, as is the case in situations involving for-profit surrogate motherhood.”
Besides this, the same conclusion is in alignment with the understanding that can be deduced from an analysis of International and Comparative Law (see B.2 and B.3 above), both directly (as in the cases of Greece and the United Kingdom, not to mention the various US states), and indirectly (e.g. in the case law of the Court of Justice, and in Germany, Austria and France). It also matches the position the CNECV expressed in 2012 on the admissibility in principle of gestational surrogacy:
“Regardless of one’s opinion on any possible risks involved in the use of gestational surrogacy, the fact that the conditions and requisites for access to it are so narrowly defined and exceptional in nature and particularly the requirement that it must be completely free of charge, can mitigate the controversial nature of the draft legislation. Possible risks and remaining doubts primarily concern different perceptions of the indeterminate destabilising effects that the admissibility – even on an exceptional basis – of gestational surrogacy could have on the social and symbolic value attached to pregnancy and motherhood.
Inasmuch as no real and current effect on fundamental principles is decisively at stake, the continued existence of those risks and doubts can be offset by the substantial benefits that a surrogate pregnancy which is legally configured in these terms can bring to the concrete life of some people. Under these conditions, there are therefore no absolute ethical objections […]” [see Opinion no. 63/CNECV/2012, point 2(a), p. 9].
29. The regime laid down in Article 8, LPMA, displays a concern to protect the gestational surrogate’s freedom of action, which is essential if her dignity is to be safeguarded. In reality, if and to the extent that the surrogate’s intervention in the whole gestational surrogacy process occurs in the exercise of her autonomy, that dignity is not affected. Hence the duty to protect the surrogate that is undertaken by the legislator within the scope of the legal regime that permits entry into gestational surrogacy contracts.
One essential element of that protection is the requirement and guarantee that the surrogate’s will is not determined by economic/financial reasons: only agreements that are free of charge are legally permissible (see §§ 9 and 24 above). The free nature of the gestational surrogacy contract is thus the first guarantee of the surrogate’s freedom of action.
However, in addition to this, the legislator also took care to surround the voluntary nature of the commitment made by the surrogate with adequate guarantees, so that the commitment can be a free expression of the development of her personality. The fact is that it is not only private parties who are brought “face to face” by the gestational surrogacy contract; the latter is also marked by an intense public intervention designed to safeguard the dignity of the contracting parties, and especially that of the surrogate – the party who is the most vulnerable, because she undergoes more risks to her health and subjects her life to greater conditioning factors
As such, the Law autonomises the surrogate’s consent to the contract she enters into with the beneficiaries and proceduralises that consent’s expression in such a way as to ensure that it is informed and free (see § 8 above). Indeed, as shown in the preparatory work for the Law, the need for informed consent was provided for autonomously and subjected to its own rules from day one; the autonomous reference to the contract itself appeared after the President of the Republic vetoed the initial Decree, in an attempt to satisfy conditions nos. 3, 8 and 11 set out in Opinion no. 63/CNECV/2012. The Draft Amendment to Decree of the Assembly of the Republic no. 27/XIII which was submitted by the authors of the original legislative initiative – the Members of the Assembly belonging to the Left Bloc – and which then led to the passage of Decree of the Assembly of the Republic no. 37/XIII, which was subsequently enacted, reads as follows:
“It is hereby clarified that in the informed consent [required] in cases of gestational surrogacy, both the beneficiaries and the gestational surrogate are also informed about the significance of the surrogate’s influence on the development of the embryo and the foetus.
It is hereby clarified that the provisions of the current law on informed consent also apply to cases of gestational surrogacy, and concretely to the gestational surrogate (consent that is free, informed and given in writing; written information about all the known risks and benefits that result from the use of MAP techniques; freedom to revoke that consent until the therapeutic MAP processes begin).
It is now made explicitly necessary for there to be a written contract between the parties, which must be supervised by the CNPMA and must set out the provisions that must be complied with in the event of foetal deformities or illness and of any voluntary termination of the pregnancy, always in conformity with the current legislation applicable to the situation.
It is also made explicit that the contract which is established cannot impose behavioural restrictions on the surrogate, nor can it impose norms that harm her rights, freedom and dignity. (…)
By defining a greater contractual stability and reducing the possibility of dispute, adding mechanisms to others that are already provided for in the Decree of the Assembly of the Republic, [the Amended text] defends the right of the child who will be born. By explicitly setting out the surrogate’s rights and duties, the need for her to give informed consent, the absolute need to respect her dignity, and the fact that contracts which harm that dignity are impossible, we are guaranteeing the surrogate’s rights. By explicitly stating the need for there to be a written contract, supervised by the CNPMA, and by defining some of the provisions it must contain, we are providing a better contractual framework.” (italics added)
What is more, the legislator established minimum procedural and organisational guarantees which cover the entry into the contract, the provision of consent and the use of the MAP techniques needed to implement the gestational surrogacy in accordance with the aforementioned protective requirements.
As such, the gestational surrogacy contract is entered into in writing and must receive prior authorisation from the CNPMA, the purpose of which is to prove that all the legal requisites have been fulfilled [Article 8(3), (4) and (10), LPMA]. The fact that Article 8(8), LPMA, refers to Article 14 of the same Law means that the consent must be given expressly and in writing in the presence of the doctor responsible for applying the MAP technique to the surrogate [para. (1)]. Before that consent is given, the CNPMA must provide written information about all the known benefits and risks that result from the use of the MAP techniques, their ethical, social and legal implications, and the gestational surrogate’s influence on the development of the embryo and the foetus [paras. (2), (3) and (6)]. Finally, the MAP techniques that are indispensable to the implementation of the gestational surrogacy can only be undertaken at duly authorised centres and by personnel who are qualified for that purpose (see Article 5, LPMA).
In short, when it modelled the gestational surrogacy regime, the legislator did not overlook the need to safeguard the dignity of the human person referred to in Article 67(2)(e), CRP, creating a specific procedure for the purpose and providing for an organisational framework of its own. Neither of these can be seen as inappropriate or insufficient in order to effectively protect the surrogate’s freedom and the need for her to be clearly informed, at least at the moment when she enters into the contract with the beneficiaries and begins the therapeutic MAP processes.
30. Whether or not these procedural and organisational guarantees are sufficient for an effective protection of the surrogate’s freedom of action throughout the whole gestational surrogacy process is another question, but one that does not interfere with the constitutional admissibility in principle of the legal institution ‘gestational surrogacy’, with the essential outlines of the model given to it by the legislator (see §§ 8, 9 and 28 above). At stake here may be concrete aspects of the legal regime which pose problems of constitutionality due to constitutional requirements regarding the right to the development of personality – a fundamental right that concretely implements the requirement to respect the dignity of the person – and given the specific dynamic to which surrogacy is subjected. In other words, on the level of the concrete legal solutions laid down in various paragraphs of Article 8, LPMA, it is necessary to assess whether those solutions adequately safeguard the gestational surrogate’s right to the development of her personality, namely in situations in which there are potential conflicts between rights, even though she has, at an initial moment in time, of her own free will and in an exercise of self-determination, given her consent to the concrete gestational surrogacy procedure in which she is a participant and has agreed to contractually bind herself in relation to that contract’s beneficiaries.
In this respect, the Court must check whether the gestational surrogacy rules which the legislator has established in the abovementioned norms appropriately weigh up in relative terms: the beneficiaries’ contractual right – a right, but one that nonetheless also corresponds to a fundamental interest on their part – to the implementation of their project involving procreation and the formation of a family; the best interests of the child who is born in the wake of the surrogacy process; the right of all those involved to the development of their personality and to self-determination in reproductive matters; and the need to protect the dignity of the woman who takes on the role of gestational surrogate, both at the moment when she enters into the contract with the beneficiaries, and when the MAP techniques are applied to her, and during the period when she is effectively pregnant and even after the childbirth. As we have said, apart from the child, this woman is the most vulnerable party, considering both the risks we have already noted in relation to coercion and those inherent in a pregnancy – namely risks of a miscarriage, an ectopic pregnancy, preeclampsia and other obstetric complications, which tend to increase with the number of gestations. In addition to all this, both the nature of pregnancy as a biological, mental and potentially emotional phenomenon, and its own dynamics, are also good reasons for reconsidering these questions.
B.4.2. The question of the dignity of the child born with recourse to gestational surrogacy
31. The main question raised with regard to the dignity of the child who is born following the use of gestational surrogacy concerns whether he/she is treated, from before he/she is born, like the “object of a transaction” – something that would determine his/her objectification. The petitioners argue in effect that the child who is then born is treated like a “an end product that can end up being rejected by everyone, or on the contrary, being wanted by everyone”, without any satisfactory answers being provided in relation to problems that are fundamental to his/her interests (e.g. the impact of breaking the bond established during the gestation; or the need to safeguard his/her best interests in situations involving conflict between the surrogate and the beneficiaries, before or after the birth). They also point out that the reference to the dignity of the human person in Article 67(2)(e) CRP seeks to safeguard not only the rights of the “persons who may be most directly affected as a result of the application of MAP techniques”, but also the rights of the people born following the application of those same techniques – a universe that includes “both [the] person who has already been born and [the] person from the moment of his/her conception”.
In any case, it is important to separate the problems that touch on the dignity of the child taken in isolation – which, according to the abovementioned “object formula”, concern any degrading treatment of him/her, namely as a result of the fact that we are in the presence of a “right pertaining to a person” – from those which already reveal a conjugation of that dignity with the state’s duty to protect his/her interests, as provided for in Article 69(1) and (2), CRP. Examples of the latter type of problem include failing to provide for the psychological and emotional consequences of the break in the uterine connection derived from the obligation to hand the child over to the beneficiaries of the gestational surrogacy contract. Although this form of procreation can conflict with both of the constitutional parameters in question – the dignity of the human person, and the duty to protect childhood – the intensity of the requirement to comply with each of them differs: the need to safeguard human dignity imposes itself on any other consideration, whereas it is possible for the duty to protect childhood to be weighed against other constitutional interests.
32. The idea that conceiving a child in order to be surrendered to someone else constitutes an inadmissible “right to a person”, therefore implying that the child is objectified and turned into the object of an agreement reached by adults with a view to satisfying their desires, is also propounded by various different authors. For example, Paulo Otero considers that free gestational surrogacy embodies a violation of the principle of humanity, given that the child is seen as means of achieving ends that are alien to him/her. In addition, he believes that the new being’s dignity is also violated from the moment at which he/she is conceived, already with the purpose of being abandoned immediately after birth (see PAULO OTERO, “A dimensão ética da maternidade de substituição”, op. cit., pp. 87-88). Maria Patrão Neves offers the following thought:
“[Gestational surrogacy and the other heterologous MAP techniques] present the conversion of the legitimate desire to have a child, seen as a match between the biological and the emotional/loving project, into an illegitimate right to a child who, as such, would be reduced in his/her identity to a mere object or good whose possession would be capable of being claimed as a right by someone else” (see MARIA PATRÃO NEVES, “Mudam-se os tempos, manda a vontade. O desejo e o direito a ter um filho” in ANA SOFIA CARVALHO (Coord.), Bioética e Vulnerabilidade, Almedina, Coimbra, 2008, pp. 49 et seq., pp. 55-56).
However, these arguments prove more than this, as various other authors point out.
Vera Lúcia Raposo begins by emphasising that the same view can also be put forward in relation to parental projects of married people who want to have children in order to save their relationship, to personally fulfil themselves, or for other ends that are extrinsic to the children’s interest (see VERA LÚCIA RAPOSO, De Mãe para Mãe – Questões Legais e Éticas suscitadas pela Maternidade de Substituição, Coimbra Editora, Coimbra, 2005, p. 48). Marta Costa and Catarina Saraiva Lima in turn consider that, solely in its own right, the use of gestational surrogacy does not violate the child’s dignity as described above, highlighting that this technique is no more harmful to the new being’s dignity that any other heterologous MAP technique that is currently permitted (see MARTA COSTA and CATARINA SARAIVA LIMA, “A maternidade de substituição à luz dos direitos fundamentais de personalidade” in Lusíada, no. 10, 2012, pp. 237 et seq., pp. 287-289). Reis Novais draws attention to the following thought, which is valid in relation to any parental project, irrespective of whether it is implemented by means of a sexual act or via MAP:
“When a couple plans the conception of a child (...) there is inevitably an instrumentalisation therein, but there is no violation of dignity, given that there is no instrumentalisation of the new being.
The conception of the new being was a means, an instrument with which to pursue a given objective, and one can say that there is an instrumentalisation in the act of conception, in the sense that the new being’s conception and his/her integration into the family are decided in accordance with the vision of happiness possessed by the members of the couple; but there is no instrumentalisation of the new being as such, in that when the latter appears in the world, he/she will potentially have a nature and a life that are exactly the same as those of any other human being. During the course of his/her normal life, that person may go through episodes in which his/her dignity is disrespected, but exactly in the same way as any other person and without any intrinsic relationship with the instrumentalisation detected in the act of conception.
If, within the family context in which he/she is born, the new being is treated and loved like any other child – and that is also the intention and the project of the couple that planned his/her birth – the fact that his/her conception and birth will have served to benefit the couple’s life doesn’t affect him/her in any way. In this sense, it is not possible to see any violation of the dignity of the human person in that project. Purely in its own right, the instrumentalisation involving the conception of new persons or new beings does not signify the violation of human dignity” (see REIS NOVAIS, A Dignidade da Pessoa Humana, vol. II, op. cit., pp. 120-121; also see note 99).
In its Opinion no. 63/CNECV/2012, the CNECV also stated that the “motivation, intention and interest of a person who resorts to MAP techniques in order to conceive a new being is always a motivation that entails a personal benefit, fulfilment or satisfaction and is embodied in the intention to procreate, to have descendants, to assume motherhood or fatherhood, to form a family, because he/she thinks this will be good for him/herself and, where appropriate, for the parental project he/she shares with someone else, accompanied by the belief – unless we find ourselves in the domain of a pathology that can occur in any situation – that the parental project will also be good for the new being” [point (1)(c), p. 7].
One can even say – using a formulation that is close to the one employed in Ruling no. 101/2009 – that when Article 67(2)(e), CRP, permits MAP and requires that it be regulated in such a way as to “safeguard the dignity of the human person”, there is an implicit idea that using MAP techniques to implement a parental project does not, in itself, violate the dignity of the child who is born following the use of that reproductive process. Indeed, if it were not for that technique, that child would not even exist.
Gestational surrogacy also requires the use of a MAP technique, in that in order to become pregnant, the surrogate, who cannot be the donor of any of the oocytes used in the concrete procedure in which she is a participant [Article 8(3), LPMA], receives an embryo formed from gametes taken from third parties. In this respect, her pregnancy is comparable to that of other persons who undergo heterologous MAP.
However, on the other hand, gestational surrogacy differs from the simple application of a MAP technique, inasmuch as the uterus that receives the embryo belongs to a woman other than the one who is considered to be the beneficiary of the process and will be deemed to be the mother of the child who is going to be born. The fact is that this difference does not interfere with intrauterine development in any way: from the as yet unborn child’s perspective, there is nothing to distinguish development in the surrogate’s uterus from that in another uterus; and after the birth, the child is handed over to the beneficiary who has been supposed to become his/her mother since the beginning, so there is no justification for talking about “abandoning” the child immediately after birth. In other words, and if everything goes as planned, once he/she has been born the child is integrated into the female beneficiary’s family and in that context will potentially have the same kind of life as any other human being, with nothing essential to distinguish him/her from other children born following the use of MAP techniques.
On the other hand, all the different MAP formats are the object of a legally binding contract (e.g. between the beneficiaries and the centre at which the therapeutic process will take place, and between the gamete donors and the centre). In gestational surrogacy, these contracts are joined by the agreement between the beneficiaries and the surrogate, which also regulates the gestation phase. The immediate object of these contracts is never the child as such. Instead, and setting aside the relationships with the donors, they cover the conception and gestation as functions that are necessary if it is going to be possible for a child, in relation to whom there is a predefined parental project, to be born. Once that birth has taken place, that child is integrated into a family, just like other children who are born as a result of reproduction by means of a sexual act. The prior entry into the contracts that regulate the MAP techniques or the gestational surrogacy, which were indispensable if the child was to be born, do not affect his/her dignity in any way.
In the light of the above, there is a justified parallelism with what happens in MAP: as in the latter, the use of gestational surrogacy, considered solely in its own right, in order to implement a parental project does not violate the dignity of the child who is born following the use of that form of reproduction.
33. This conclusion is not invalidated by the break in the uterine bond that is presupposed by the execution of the gestational surrogacy contract. The child’s best interests may be at stake in this case, but his/her dignity is not directly and autonomously endangered. After his/her birth, the child’s interests may be affected in many ways, positive or negative. One could only talk about an effect on the child’s dignity if, in its own right, the gestational surrogacy necessarily implied a negative effect on the new being such as to compromise his/her full development in a normal family environment [Article 69(1) and (2), CRP]. The Constitution protects both intrauterine (see case law on abortion – Rulings nos. 25/84, 85/85, 288/98, 617/2006, and 75/2010) and embryonic life, “at the point at which the embryo, albeit not yet implanted, has the potential to bring about human life” (Ruling no. 101/2009). It is therefore not constitutionally permissible for there to be an intervention during these phases which intentionally and necessarily results in a human being who is diminished and lacks the full capacity for self-determination. In such a case there would indeed be an ab initio instrumentalisation of the new being in pursuit of the ends sought by that practice, which could only be considered degrading. However, there is no evidence of the existence of an inevitable harm to the child caused by his/her separation from the woman who gave birth to him/her.
The 2012 report drawn up by the President of the CNECV says the following in this respect:
“A number of studies in the fields of Psychology and Paediatrics have assessed the relationship between children and parents, the respective levels of well-being and parental and educational responsibilities, based on a distinction between families deemed natural and those resulting from MAP techniques (namely with recourse to surrogate gestation). In general, these studies have recognised good parenting skills and capacity for affection on the part of the parents, and normal levels of intellectual, somatic emotional and social development on the part of the children. Having said this, these studies have been limited in time, in that they have only addressed children up to the age of two.” (pp. 21-22).
In its Opinion no. 63/CNECV/2012, the only risks and doubts which the CNECV referred to concerned: “above all different perceptions of the indeterminate destabilising effects that the admissibility – even on an exceptional basis – of gestational surrogacy could have on the social and symbolic value attached to pregnancy and motherhood”. Because of this, the Council considered that: “Inasmuch as no real and current effect on fundamental principles is at stake, the continued existence of those risks and doubts can be offset by the substantial benefits that a surrogate pregnancy which is legally configured in these terms can bring to the concrete life of some people. Under these conditions, there are therefore no absolute ethical objections” to gestational surrogacy (p. 9).
Even in the 2016 report that preceded the CNECV’s unfavourable opinion with regard to gestational surrogacy (Opinion no. 87/CNECV/2016), we should note the following comment:
“There is not yet enough evidence about the effects that a new and different reproductive context has on the construction of the child’s personality, although there is some evidence as to the (psychological, biological/epigenetic) connection that establishes itself between the foetus and the pregnant woman during gestation – a connection that is important to the child’s future development. The question lies in weighing up whether it will be acceptable for the law to require fulfilment of a contract that represents a break with the biological and loving emotional bond which is constructed over the course of the child’s intrauterine development and whose maintenance and improvement has already been shown by science to be beneficial for the new-born child, in his/her process of growth and bio-psycho-social affirmation” (pp. 15-16).
The thing is that the implicit appeal to the principle of precaution and to the need to consider the relative weight of the beneficial aspects of the early bond between the mother and the as yet unborn child excludes any certainty as to the harm done by a break, and thus also means that a legal argument based only on the dignity of the child is not pertinent. In this sense, Vera Lúcia Raposo, for example, attaches a low degree of significance to the risks of any psychological upset this technique might cause the child. She also notes that a child conceived by gestational surrogacy will be able to be sure that he/she was very much wanted by the beneficiaries, who were forced to overcome their own physiological and biological limitations in order to bring him/her into the world, and will thus never suffer from the trauma experienced by “accidental” children (see VERA LÚCIA RAPOSO, De Mãe para Mãe…, op. cit., p. 48).
In reality, one should emphasise the fact that current scientific studies do not indicate the existence of any relevant differences in terms of parental relationships and harmonious psychological development between children who are born by means of gestational surrogacy and other children, and this factor has not been pointed to as a direct cause of any disorders (see e.g. and in addition to the references in the aforementioned 2012 report by the President of the CNECV: GOLOMBOK, S., BLAKE, L., CASEY, P., ROMAN, G. and JADVA, V. (2012), “Children born through reproductive donation: a longitudinal study of psychological adjustment” in Journal of Child Psychology and Psychiatry, 54, 653–660. doi:10.1111/jcpp.12015).
B. 5. Other questions of unconstitutionality raised by the Portuguese gestational surrogacy model
34. However this may be, the questions of unconstitutionality related to the dignity of the persons who intervene in the gestational surrogacy process are not the only ones that might possibly determine the format’s constitutional inadmissibility in principle, even if we only look at its essential positive-law outlines (i.e. a gestational surrogacy which is of a subsidiary and exceptional nature, is formalised by means of a contract which is free of charge and subject to prior administrative authorisation, with a procedure which entails MAP using gametes from at least one of the beneficiaries, and with the surrogate precluded from being the donor of any oocyte used in the concrete procedure in which she takes part). There are other possible constitutional objections which the Court must consider, some of which have been formulated by the petitioners, but not only by them. The Court is only able to declare the unconstitutionality of norms it has been asked to review, but it can do so on the grounds of a breach of constitutional norms or principles other than those invoked by the authors of the review request [see Article 51(5) of the Law governing the Constitutional Court (LTC)].
The petitioners immediately draw attention to the insufficient protection of the interest of the child who has been born, which they say is caused by the break in the latter’s connection with the surrogate after the birth and has negative consequences for his/her future development. This would mean that if the law were to permit gestational surrogacy, it would thereby cause a breach of the duty to protect childhood [Article 69(1) and (2), CRP]. This was indeed one of the factors the CNECV presented in its Opinion no. 87/CNECV/2016 as grounds for opposing the amendment of the then current legal regime (point 1: the “Council considers that the rights of the child who is to be born are not safeguarded”).
However, given how central the need to defend the best interests of the child is to the issue of gestational surrogacy, other questions that are also related to that defence have been raised as well. This is particularly the case of the disadvantages for the child that are associated with single parenthood; and on a more general level, of the lack of consideration given to the family itself, seen as an institution that is based on clearly differentiated family bonds, due to a so-called promotion of an ambiguity about the meaning of motherhood.
35. The petitioners argue that there is a breach of the duty to protect childhood laid down in Article 69(1), CRP (“With a view to their integral development, children have the right to protection by society and the state, especially from all forms of abandonment, discrimination and oppression and from the improper exercise of authority in the family or any other institution”) in the form of an omission or inadequate defence of the best interests of the child in the face of the intended parents’ desire to have a child. This position is based on the aforementioned possibility that breaking the bond between the new-born child and the surrogate can cause psychological and emotional damage during the former’s development, and that that damage can accompany him/her throughout his/her life. In addition, and as mentioned in the 2016 CNECV report, science has already demonstrated that as part of the process of their bio-psycho-social growth and affirmation, it is beneficial for new-born children to maintain and further improve that bond. The petitioners say this means that the best interests of the child require that that bond be safeguarded, and that those interests should prevail over those of both the intended parents and the surrogate herself.
Protecting childhood and safeguarding the best interests of the child are leading values at both the international and European Union levels, and there are numerous instruments which enshrine both children’s rights and states’ obligations to ensure that children are protected and their best interests safeguarded. As we noted earlier in § 10, particularly prominent in this respect are the Convention on the Rights of the Child [especially Articles 3(1), 7(1) and 9(1)], and the CFREU (Article 24). On the domestic Portuguese level, the aforementioned duty to protect childhood is especially important.
In truth, children’s physical and psychological characteristics and the dynamism inherent in the formation and development of their personality make them naturally vulnerable to circumstances that could endanger the process whereby they become autonomous, and at the end of the day, could compromise or condition their self-determination as adults. This is why the Constitution recognises them as subjects of fundamental rights and simultaneously concerns itself with possible situations of need associated with their vulnerability, specifically recognising that “With a view to their integral development, children have the right to protection by society and the state” [Article 69(1), CRP]. As Canotilho and Moreira underline, “this right to the protection of children protects every child equally, but may justify special compensatory measures (positive discrimination), above all in relation to children in certain situations (orphans and abandoned children) [para. (2)]” (see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note I to Article 69, p. 869). The fact is that “the constitutional notion of integral development [final part of para. (1)] – which is linked to the “development of personality” [Art. 26(1)] – is founded on two presuppositions: on the one hand, the guarantee of the dignity of the human person (see Art. 1), which is an element that is ‘static’, but is essential to the foundations of the right to development; on the other, the fact that the child is considered to be a person in the process of formation, a dynamic element, whose development demands that advantage be taken of all his/her qualities” (idem, ibidem, pp. 869-870).
As such, the right of children to protection with a view to their integral development takes on an autonomous density, inasmuch as besides presupposing the right to the development of their personality, it implies rights to a protection of the legal value “development of personality” against both threats or aggressions from third parties, including their own progenitors, and natural contingencies – rights that are matched by corresponding duties to protect children “from all forms of abandonment, discrimination and oppression and from the improper exercise of authority in the family or any other institution” [Article 69(1), CRP] – and the guarantee of favourable conditions for the formation of their personality itself. It is because of this second aspect – which corresponds to a general duty to promote the legal value in question – that children’s right to the protection of their integral development leads in turn to a “typical ‘social right’ that involves duties to legislate and to take administrative action to ensure its fulfilment and concrete implementation” (in this respect, see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note I to Article 69, p. 869).
The duty to protect – specifically invoked by the petitioners – presupposes the existence of a threat or danger to the protected value (in casu, the child’s integral development) and implies taking action against the aggressor. The more certain and concrete the threat, the more intense that action must be. In any case, when directed at third parties (here, the intended parents and the surrogate), that action entails placing limitations and restrictions on those parties’ freedom of action, and at the limit can lead to restraints or disqualifications or even a loss of rights. This in turn means it is necessary to weigh up a number of questions involving on the one hand the severity of the risk to the protected value, and on the other the importance of the interests of the people who will be affected by the measures designed to protect it.
There are no safe and determined or definitive certainties with regard to the negative impact on the development of a child who is separated from the woman who gave birth to him/her; having said that, the scientific data do suggest that maintaining that connection after birth does have a positive impact (see § 33 above). Be that as it may, science does not exclude the possibility that any negative impacts could be offset by a child/parent experience that is more intense because the parents wanted it more and have only achieved it after overcoming a lot of suffering. From the point of view of both the intended parents and the surrogate, one cannot ignore the positive constitutional relevance of gestational surrogacy, both as a means of making fundamental rights that pertain to the beneficiaries viable in practice (as discussed in § 27 above), and as a possible expression of the surrogate’s personal autonomy (see § 28 above).
In short, one might say that the danger to the development of the child who is born as a result of gestational surrogacy which is inherent in that process is highly abstract and significantly uncertain. It is this level of threat to that value which must be weighed up against the imposition of severe limitations on the general freedom of action that separately pertains to both the intended parents or beneficiaries, and the gestational surrogate. Against such an uncertain background in terms of the risks for the child’s development and the positive certainty as to the benefits gestational surrogacy provides to both the beneficiaries and the surrogate, one cannot but recognise that the legislator enjoys a significant margin within which to appreciate the question and shape the law. Under these conditions, the duty to protect the child does not impose a single form of action, especially when that entails absolutely preventing all and any risk by prohibiting gestational surrogacy. Indeed, although the Court admitted the possibility of such a solution in Ruling no. 101/2009, it did not consider that the Constitution required it. Instead, that duty can be fulfilled by means of a number of different solutions which achieve a balance between the various interests in play – solutions which range from banning this form of procreation to regulating it. To allow gestational surrogacy or to prohibit it is simply a choice that is available to the legislator, and one the latter must make within a framework in which there are no absolute certainties as to whether the advantages outweigh the disadvantages or vice versa (on the absence of a requirement to permit, see § 27 above). Consequently, in its own right, the fact that Article 8, LPMA, allows gestational surrogacy does not breach the duty to protect childhood.
36. Another question raised with regard to the defence of the best interests of the child concerns the possibility of creating single-parent families.
This problem was raised in the request which the Court considered in Ruling no. 101/2009, inasmuch as permitting heterologous MAP can lead to this type of situation: by excluding the paternity of the semen donor and allowing the husband or partner of the woman who is subjected to the MAP technique to challenge the presumption of paternity, proving that he did not consent to the technique (or that the child was not born from the insemination to which he did give his consent), in practice it is possible for the child be legally deemed to be only the son/daughter of the woman who underwent the MAP technique and no one else [Articles 10(2), 19(1), 20(4), and 21, LPMA, with the text given to it by the 2016 Laws]. Due to the expansion of the range of possible beneficiaries of MAP techniques which Law no. 17/2016 introduced with a view to ensuring that all women have access to MAP (see its Article 1), the problem has become even more pressing: under the new text of Article 6(1), LPMA, any woman, regardless of her civil status or sexual orientation, can resort to MAP techniques, thereby becoming the beneficiary of those techniques under the same terms as heterosexual couples or same-sex female couples who are married or live in circumstances analogous to those of spouses, whereas prior to the passage of Law no. 17/2016, that precept only permitted access to MAP techniques by couples who were married or lived in circumstances analogous to those of spouses.
The question of single parenthood may possibly also arise within the overall gestational surrogacy framework (see the note in § 8 above). However, even in this event, the fact is that this is not a problem that is specific to this form of procreation. At present, the question necessarily poses itself as a consequence of the aforementioned amendment to Article 6(1), LPMA. That was the precept in which the principle of two parents was anchored (in this sense, see Ruling no. 101/2009). However, as stated in the report attached to Opinion no. 87/CNECV/2016, there has been a “change of paradigm regarding the use of MAP techniques, with the questions now centred on one reality: that the beneficiary of the techniques is the woman, irrespective of whether or not she is accompanied by a partner, male or female. To this extent, the amendments planned for Law no. 32/2006 of 26 June 2006 (and which were effectively made to it by Law no. 17/2016) do not imply a real broadening of the beneficiaries of MAP techniques; rather, they constitute the acknowledgement by the law that the beneficiary of the techniques is the female person to whom they are potentially applied – i.e. the woman” (p. 11). As such, the possibility that single-parent families may be formed with recourse to MAP techniques results solely from Article 6(1), LPMA.
The fact is that the petitioners have not questioned the constitutionality of this or any other dimension of this precept, and so in compliance with the principle of judicial passivity, the Court is unable to address this question.
37. The more general question regarding the promotion of the ambiguous nature of motherhood that has an impact on both children who are born following the use of gestational surrogacy and the institution of the family itself is set out, for example, in the joint dissenting opinion attached to Opinion no. 63/CNECV/2012. The dissenting voices especially highlight the ethical/philosophical aspects of this question in the report to which it is attached, which was drawn up by Council Member Michel Renaud. They summarise the essence of the concerns in this regard, as follows:
“Our dissent is essentially explained by the fact that we consider that it was always the priority and often the sole interest of the beneficiary couple and not the interest of the unborn child which formed the basis for the discussion at the CNECV; we, however, are of the opinion that the best interests of the unborn child are foremost among the elements that ought to guide the reflection process. Secondly, for circumstantial reasons, the majority Opinion changes the overall meaning of motherhood – something which, indeed, presupposes the intentional promotion of a philosophical dualism between the natural aspect of maternity and its social/legal and political aspect – a dualism with which we do not agree in philosophical terms and which does not seem to us to be the sign of a civilizational progress. […]
The [negative] draft opinion is based on the following considerations:
(…)
6. (…) Gamete Donation and Surrogacy (GDS) brings with it a profound civilizational, ethical and social change in both the reality of the family and the meaning of maternity and filiation that calls for in-depth reflection. (…)
8. The law can only resolve the ambiguity derived from the question “who is the mother” – the genetic mother or the surrogate – in an arbitrary fashion (…) The disagreement in this regard between the states which accept GDS shows that the latter has generated an ambiguity in the concept of motherhood that requires a legal measure to overcome it (as opposed to the adage “mater semper certa est”). (…)
10. GDS has consequences for the concept of filiation: it alters the natural concept of the parent-child relationship. It intentionally dissociates natural filiation from social filiation; unlike the act of adoption, which is not responsible for either natural filiation or the absence of a relationship between natural and social filiations, GDS constitutes an explicit, voluntary initiative designed to bring about that dissociation (…).
16. If GDS is undertaken with the participation of a relative, one can foresee a psychological disturbance due to either a generational short-circuit (if the surrogate is simultaneously the unborn child’s grandmother), or a confusion in relation to the image of motherhood that is created in the human being who is born via GDS. (…)”
Taking a converging viewpoint, João Loureiro articulates the following position in legal terms, based on the institutional guarantee of the family enshrined in Article 67, CRP:
“The symbolic structures of blood relationships, starting with the taboo of incest, are not indifferent to homo familiaris […] Useful here are the pertinent remarks made in a report by The President’s Council on Bioethics: ‘albeit apparently a private act, human procreation has a deep public significance. It determines the relationships between one generation and the next, shapes identities, creates bonds, and establishes responsibilities for caring for and raising children (as well as looking after elderly parents or another relative in need). If the mother is the mother, but the grandmother is in fact also the mother because she gives birth [to the child], and if the uterus is important to more than just the question of multiplication (…), we paradoxically witness a questioning of the most fundamental separation between family bonds, a lack of order and an undifferentiating differentiation, which forgets the profound symbolism of the narrativity of creation based on an order that is precisely structured around the aforementioned separation [and which, in the words of Onora O’Neill, gives rise to] family relationships she classifies as ‘confused’ or ‘ambiguous’.
(…) it seems to me that the CRP does not allow the opening of doorways to an experimentation which, dramatically in this case, is not a mere ‘thought experiment’ ” (see JOÃO LOUREIRO, “Outro útero é possível…” op. cit., pp. 1425-1427).
Although the gestational surrogacy permitted by Article 8, LPMA, is not limited to the family circle – and therefore does not necessarily lead to an intrafamily substitution – there is an undeniable possibility, if not even a probability, that situations like those described above will arise.
In any case, and regardless of the greater or lesser perception they themselves may have of them, the reciprocal positions of the female beneficiary, the surrogate and the child who is born following the use of gestational surrogacy are perfectly defined from the legal point of view. This is precisely the objective of the move to adapt the general right of filiation established in the Civil Code to the special situation involved in gestational surrogacy [see Article 8(7), LPMA; and also § 8 above]. As a result, and particularly with regard to the most restricted circle within the family – the so-called “nuclear family” – the normative-legal profile of the institution of the family is not affected by gestational surrogacy: from the law’s point of view, a child conceived by a grandmother or an aunt on behalf of their daughter or sister respectively is still just their granddaughter or niece; or, in the event of some vicissitude that invalidates the gestational surrogacy contract, just their son or daughter. What is more, the filiation criterion at stake here is not (legally speaking) arbitrary, inasmuch as it is founded on the efficacy of a lawful surrogacy contract which, in the Portuguese and other legal orders alike, performs a legal/social role that is relevant at the level of the Constitution itself.
The question of constitutionality that may arise is whether the family in which such situations occur still corresponds to the constitutional concept with that name: family as a “fundamental element of society” with “the right to protection by society and the state and to the effective implementation of all the conditions needed to enable family members to achieve personal fulfilment” [Article 67(1), CRP].
The constitutional concept of family is not defined, and its normative domain presents an increasingly differentiated range of admissible solutions. The successive Family Law reforms reflect precisely this. As Jorge Duarte Pinheiro acknowledges, “Family Law is especially permeable to social reality and ideological positions in the broad sense of the terms (including political or religious viewpoints or secular and apolitical notions”, and where the way in which it is linked to values is concerned, current Portuguese Law leads to a pluralist matrix, in that it “admits the relevance of different orders of how one should be socially, [albeit] within certain limits that are normally defined by the way in which the majority thinks” (see JORGE DUARTE PINHEIRO, O Direito da Família Contemporâneo, 5th ed., Almedina, Coimbra, 2016, pp. 53-57).
On the other hand, the normative programme of such a concept must be densified on the basis of relevant constitutional references, such as Article 36(1), CRP, which means that the constitutional concept of the family does not imply marriage (see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note III to Article 67, pp. 856-857). The norm on the regulation of MAP set out in Article 67(2)(e), CRP, performs a similar function: as provided for in the Constitution, the family opens up to the possibility of MAP; it doesn’t limit it. Moreover: the effective implementation of the conditions that make it possible for family members to achieve personal fulfilment is itself a family right.
We are thus unable to see that the institutional guarantee of the family possesses such a precise definition that it would be capable of being mobilised as a constitutional obstacle which would preclude the ordinary legislator from permitting gestational surrogacy under certain conditions. Taken on its own, this form of procreation does not conflict with the constitutionally appropriate concept of “family”. On the contrary, it presents itself as a (one more) factor for rendering the family more dynamic, making it possible to establish filiation ties in situations in which they would otherwise not be possible for health-related reasons.
B. 6. Questions of unconstitutionality raised by certain aspects of the regime governing lawful gestational surrogacy
38. The absence of any incompatibility between the Portuguese gestational surrogacy model and the Constitution does not mean that certain aspects of the legal regime governing it cannot give rise to questions of unconstitutionality. In that event, it is not the model as such that would be in question, but only certain solutions that were adopted when the legislator concretely implemented it. On condition that the solutions in question are included within the objective scope of the review request – Article 8(1) to (12), LPMA, and other norms that are contained in the Law and refer to gestational surrogacy – there is nothing to prevent the Court from considering the possibility of their unconstitutionality [see the abovementioned Article 51(5), LTC].
From the substantial point of view – i.e. with regard to the content of the solutions that have been adopted – we can identify two types of problem, which are indeed foreshadowed in our analysis of the need to safeguard both the dignity of the surrogate and that of the child (especially see § 30 above).
First of all, we must analyse the efficacy of the guarantee of the gestational surrogate’s ethical and personal autonomy, which is indispensable if her dignity is to be preserved and acts within the scope of a biological, mental and potentially emotional/loving process like pregnancy. The fact is that if gestational surrogacy is legitimate, from the surrogate’s point of view, as an exercise of her freedom to externalise her personality – a freedom to act in accordance with a life project which is her own and by which she shapes her own personality (see § 28 above) – it is important to ensure that the sense of that action is not reversed and, in the middle of the process, turns into a mere instrument in the service of the beneficiaries’ will. The legislator responded to this concern in two ways: on the one hand, by imposing a precondition on entry into the gestational surrogacy contract itself – that the surrogate be informed of both the known benefits and risks and the ethical, social and legal implications of the commitment she proposes to undertake, and that she gives express, autonomous consent in advance; and on the other, by allowing her to revoke that consent “until the beginning of the therapeutic MAP processes” [see Articles 8(8) and 14, LPMA; also see §§ 8 and 29 above]. But is that enough?
Secondly, by depriving the gestational surrogacy of its efficacy, the nullity regime provided for in Article 8(12), LPMA, affects the filiation that is established on the basis of that contract under the terms of paragraph (7) of the same precept. The fact that the nullity can be invoked at any time and by any interested party means that doubts arise as to whether the requirements of legal certainty are respected in relation to a matter as important as filiation. Those doubts also extend to the question of whether and to what extent the interest of the child who is born following gestational surrogacy can be autonomously weighed up against other interests in the event that the applicable contract, be it free of charge or for-profit, is annulled.
On a different level, but one that is no less relevant within the framework of a democratic state based on the rule of law, there is also the problem of the sufficiency and determinability of the legal regime governing the gestational surrogacy contract, all the more so in an area that is at least partially encompassed by Parliament’s exclusive legislative competence and the requirement for a parliamentary law [Article 8(4), (10) and (11), LPMA]. The fact is that the legislator refrained from intervening in a way that would have shaped the content of the clauses of the surrogacy contract, instead limiting itself to requiring the necessary existence of provisions on certain matters and prohibiting both provisions that impose “behavioural restrictions on the gestational surrogate” and “norms that infringe on her rights, freedom and dignity”. Inasmuch as the contract is an expression of the parties’ private autonomy, not intervening in the question prima facie could even appear to be a natural consequence. Simply speaking, the legislator also acknowledges that the contract is “supervised”, and must be authorised in advance, by the CNPMA. In other words, and without prejudice to the entry into force of the regulations referred to in Article 4(2) of Law no. 25/2016, by thus refraining from intervening in such a way as to shape the content of the gestational surrogacy contract, the legislator ended up passing the competence to positively and negatively delimit the scope of the exercise of the parties’ private autonomy in such contracts to the CNPMA.
B.6.1. The question of the limits on the surrogate’s freedom to revoke her consent
39. We have already duly emphasised that the surrogate’s consent is essential to the efficacy of the gestational surrogacy contract. While – in addition to regulating different aspects of the relationships between the parties, the contract reflects the surrogate’s adherence to a parental project of the beneficiaries, agreeing in relation to them to subject herself to a range of operations whose final goal is to give birth to a child who will be deemed the beneficiaries’ son/daughter (see §§ 24 and 28 above) – the purpose of the consent is to ensure that the obligations which are undertaken in order to make that goal achievable (obligations which interfere with fundamental rights pertaining to the surrogate, namely the rights to physical integrity and to health, and even the right to form a family and have children) do not harm the surrogate, and that her dignity is safeguarded throughout the process (see §§ 8, 28 and 29 above). The fact is that all the obligations which are characteristic of the gestational surrogacy contract – subjection to a MAP technique, undergoing pregnancy and childbirth in the beneficiaries’ interest, and handing the child who is born over to them – are only legally admissible because the surrogate consents to them. And this free, informed consent – and this is the reason for establishing certain procedural and organisational guarantees in relation to its provision – which is binding on her, must be valid in that it is an indispensable condition if her dignity is to be safeguarded, because only thus can she perform the specific function that pertains to her under the gestational surrogacy regime.
Given the legal nature of consent as a unilateral transaction, it is not easy to articulate it in formal/legal terms with the regime governing the contract, which is a bilateral transaction. Nor are we helped by the way in which the express reference to the contract was inserted into the Law (see § 29 above). Be this as it may, it is safe to say that the terms under which the Law provides for the contract and its regime must not prejudice the specific function of the consent here, particularly that given by the surrogate, failing which the very constitutional admissibility of gestational surrogacy itself would be undermined. We should recall that one of the conditions for the admissibility of the Portuguese gestational surrogacy model is precisely that the latter is considered incapable of endangering the surrogate’s dignity (see §§ 28 and 29 above).
40. The aforementioned difficulties with the formal/legal articulation of the consent and the contract are immediately apparent in the LPMA itself. Nonetheless, and as we have already said, the legislator preserved the autonomy of the consent, ensuring that at least “until the beginning of the therapeutic MAP processes”, the contractual regime cannot undermine the legal guarantees linked to the freedom of consent. The fact is that, with regard to the gestational surrogacy, the applicability of the provisions of Article 14(4), LPMA to both the beneficiaries and the surrogate – an applicability that results from the referrals contained in Articles 8(8) and 14(5) – means that even if there is already a signed contract between the parties, any of them can revoke the consent he/she has already given, thereby eliminating the fulfilment of the precondition that the contract has been entered into and consequently causing it to be entirely without efficacy.
Article 8(10), LPMA, states that “Gestational surrogacy transactions shall be entered into by means of a written contract between the parties” – i.e. the beneficiaries and the surrogate. It is in this agreement, which must be supervised by the CNPMA, that certain questions must be regulated [“the provisions to be fulfilled in cases in which foetal deformities or illnesses occur and in cases in which there is a voluntary termination of the pregnancy” (para. 10)]; at the same time, the agreement “may not impose behavioural restrictions on the gestational surrogate, nor may it impose norms that infringe on her rights, freedom and dignity” [para. (11)], nor may it provide for payments to the surrogate that exceed “the amount corresponding to the expenses derived from the healthcare that is effectively provided, including transport costs, on condition that they are duly substantiated by the applicable document” [para. (5)]. In order to verify fulfilment of the requisites for the contract to be legal, it must be authorised by the CNPMA in advance [para. (4)].
However, paragraph (8) of the same Article expressly refers to the “validity and efficacy of the parties’ consent”, making it autonomous from the “gestational surrogacy transaction regime”, and subjecting the matter to the provisions of Article 14, LPMA. This precept, which was specifically designed to apply to the application of MAP techniques, is entitled “Consent” and governs the conditions, terms and content of a transactional declaration of this type, which is unilateral by nature. As we said in § 8 above, the consent that is given with regard to gestational surrogacy does not limit itself to authorising the application of a given MAP technique; it binds the consenter in relation to the whole gestational surrogacy process, and is therefore both more complex and more encompassing.
It is more complex, because it requires one declaration of consent from the beneficiaries and another from the surrogate, and those declarations are not just directed to the doctor in charge, but also to the interested parties themselves: the beneficiaries give their consent, including to the surrogate, that an embryo formed with recourse to gametes from at least one of them be implanted in her; and the surrogate also gives her consent, including to the beneficiaries, to that embryo’s implant in her.
The consent in question is also more encompassing, in that its object is not just the application of a MAP technique, but a whole gestational process and the childbirth itself. This is why Article 14(6) says that “the beneficiaries and the gestational surrogate [must] also [i.e. in addition to the information regarding the known risks and benefits resulting from the use of MAP techniques, together with their ethical, social and legal implications] be informed in writing of the significance of the gestational surrogate’s influence on embryonic and foetal development”.
As such, the beneficiaries’ consent implies a positive will for the embryo which is created with recourse to their genetic material, to be implanted in the surrogate, developed by her over the course of the pregnancy and given birth to by her, and be deemed their child. Similarly, the surrogate’s consent reflects the positive will for the child she will carry in her womb and to whom she will give birth not to be her son or daughter, but that of the beneficiaries. This targeted self-binding that is inherent in the consent given as part of the gestational surrogacy process explains why it is difficult to separate the consent from an agreement between the parties. The truth is that it makes complete sense to accommodate the requirements regarding the consent in the contract itself.
41. Indeed, it seems that exactly this was attempted in Regulatory Decree no. 6/2017 of 31 July 2017, which regulated Law no. 25/2016, and in the model contract that was approved thereafter, but with the goal of reducing the number of autonomous references to consent to a minimum and making the agreement coincide with the unilateral declaration of consent.
Article 3(1) of the Regulatory Decree requires the CNPMA to approve the model gestational surrogacy contract, which must obligatorily include clauses that address a list of matters set out in paragraph (3) of the same Article. Given their link to the question of consent, the following subparagraphs are of particular note in this respect: (e) the “provision of complete, appropriate and adequate information about the clinical techniques and their potential health risks”; and (f) the “provision of information to the beneficiary couple and the surrogate about the significance and consequences of the influence of the surrogate’s lifestyle on embryonic and foetal development”. They are especially significant because they concern the information which is designed to ensure an informed consent and is provided for in paragraphs (2) and (6) of Article 14, LPMA, respectively. We can thus see the effort that is made to ensure that when the parties agree to a contract which complies with the legal model, they simultaneously give the required consent.
Even so, that consent is autonomised, both in subparagraph (j), which concerns the “terms under which the consent or the contract may be revoked and the consequences thereof” (italics added), and above all in the following precept:
“Article 4
Transactional declarations
Without prejudice to the provisions of Article 142(1)(e) of the Criminal Code (CP), the transactional declarations made by the gestational surrogate and the beneficiaries in the gestational surrogacy contract shall be freely revocable until the beginning of the therapeutic MAP processes.”
We should note that the CP precept referred to here concerns voluntary termination of pregnancy undertaken at the woman’s choice during the first ten weeks of pregnancy.
The model contract approved by the CNPMA refers to the “revocation of the contract”, not in terms of a revocatory agreement, but rather of the possibility whereby “any of the parties” can freely terminate the contract “until the beginning of the therapeutic MAP process” [clause 8(1)]. It also permits the (unilateral) termination of the contract in cases in which there is a voluntary termination of the pregnancy [Clause 8(1, final part) and (2), only by the surrogate, with reference to the hypothesis provided for in Article 142(1)(e), CP; Clause 11, by any of the parties, in the situations covered by subparagraphs (a) or (b) of the same precept]. Fulfilment of the duties to inform and the consent given in the presence of the doctor are both preconditions for the signature the contract, as referred to in recital (g) of the model contract [albeit subsequently, in Clauses 2(2)(a) and 5(a) respectively, the model contract specifies that both the surrogate and the beneficiary couple are entitled to be informed in accordance with the provisions of Article 14(2), LPMA]:
“The beneficiary couple and the surrogate have been informed in writing of the known benefits and risks that result from the use of MAP techniques, as well as of all their ethical, social and legal implications and the significance of the gestational surrogate’s influence on embryonic and foetal development, and have expressly given their free and informed consent to the implementation of the necessary MAP procedures.”
42. To put it simply, we must not confuse a legitimate contractual accommodation with an undifferentiation that is illegitimate, given the asymmetry that exists between that which the beneficiaries and the surrogate consent to and the functional autonomy of the consent of each of the parties to the contract.
Focusing on the surrogate, we see that it is her health that runs the greatest and longest-lasting risks and that it is she who commits to undergoing the pregnancy and the childbirth, and to then handing the child over to the beneficiaries. For her, the consent covers a significant period of time over the course of which her body and her psychological and emotional health experience various alterations. In functional terms, and as mentioned earlier, the legal validity of any of the essential obligations of the surrogacy contract presupposes the validity and efficacy of the surrogate’s prior consent, failing which her dignity is likely to be compromised. Precisely because of this, her consent reflects the exercise of her fundamental right to the development of her personality with reference to each of the phases of the gestational surrogacy process (see § 28 above).
Turning to the beneficiaries, after the necessary gametes have been collected and the uterine transfer completed, any backwards step in terms of their consent can no longer interfere with the essential contractual obligations. The binding nature of their consent is justified by the fact that the obligations in question fall on the surrogate and not on them. If they were to give up on the parental project they initially undertook, and in the event the gestational surrogacy were to be successful, the only possible consequence might be the giving up of the child for adoption. So unlike what happens in the surrogate’s case, their consent is not necessarily linked to the exercise of fundamental rights that pertain to them. Indeed, as mentioned above, the beneficiaries do not possess a fundamental right to procreation by means of gestational surrogacy; the latter is solely a choice on the legislator’s part that is designed to make it possible to implement a parental project which would otherwise not be viable (see § 28 above).
The legislator maintained the express, autonomous reference to both consent and its free revocability in Article 14(4), LPMA, laying down that that precept “shall apply to the gestational surrogate in the situations provided for in Article 8” [see Article 14(5)]. The fact is that despite all the connections, the surrogate’s acceptance of the gestational surrogacy contract does not necessarily guarantee the continuity of her consent for the entire length of time over which the contract is executed. As mentioned earlier, the contract can accommodate the requirements related to the consent, and especially to its limits, but it can also not do so. In that case, and given the importance of the consent to the legal admissibility of the contract itself, the requirements pertaining to the consent must prevail. The legislator even acknowledged this in Article 14(4), LPMA: the consent is freely revocable until the therapeutic MAP processes begin. The question this precept then raises is whether that guarantee is sufficient from the point of view of the need to safeguard the surrogate’s dignity.
43. As shaped by the current law, the surrogate’s consent is given ex ante in relation to the beginning of the therapeutic MAP process, and a fortiori, to the pregnancy and childbirth themselves – more precisely, either before or at the moment when the gestational surrogacy contract is entered into. That consent is based on the information referred to in Article 14(2) and (6): respectively, the known benefits and risks resulting from the use of MAP techniques, together with their ethical, social and legal implications; and the significance of the surrogate’s influence on embryonic and foetal development. It can only be revoked until the beginning of the said therapeutic MAP process.
The fact is that gestation is a complex, dynamic and unique process in which a relationship is formed between the pregnant woman and the foetus that gradually develops within her. This is why one can ask how far a consent which is given even before the pregnancy, with regard to the whole gestational surrogacy process from the implant of the embryo until the childbirth, and even after that, until the child is handed over to the beneficiaries, is truly informed about the entirety of that process.
The Relatório sobre Procriação Medicamente Assistida e Gravidez de Substituição (Report on Medically Assisted Procreation and Surrogate Pregnancy), which Council President Miguel Oliveira da Silva drew up as part of the preparatory work for Opinion no. 63/CNECV/2012, shows that the surrogate is neither biologically nor emotionally neutral in relation to the foetus, and that there is a very significant interaction between them:
“3.4. The uterine environment and its determinant influence on the human person
The uterine microenvironment conditions the functioning of the placenta and the development of the foetal epigenome, and without altering the DNA sequence, leads to modifications in the epigenome (a range of modifications in the chromatin […], by means of DNA methylation, modifications in the histone and the non-coding microRNA).
Pregnancy is a vulnerable time and constitutes, among other aspects, the moment par excellence at which the epigenome of the embryo/foetus is actively programmed, conditioning and defining the expression of the embryo/foetus’s genes forever: the expression of the embryo/foetus/child’s genes (activation and deactivation) is moulded by the intrauterine gestation, activating some genes, deactivating others, with a lot being at stake from the moment at which the embryo is implanted in the uterus. The implantation is a phenomenon that is scientifically ever more determinant of the embryo/foetus’s future and obviously varies from uterus to uterus.
The new-born is not the same person depending on the uterus in which he/she is conceived: there is a different identity (even in epigenetic terms).
The pregnant woman alters each embryo’s genetic expression.
And in the other direction too: the embryo/foetus alters the gestating mother forever (even on the simple biological level, not to speak of the emotional and spiritual aspects) – no woman is the same person (just considering her biology, without talking about her mental and spiritual life) after each pregnancy, given the foetal DNA circulating within the mother.
The surrogate can hand the child over to the ‘legal/social’ mother after the birth, but for her entire life she will have DNA from that human being circulating within her, possibly with consequences for her health and behaviour – the relationship does not end when the contract is fulfilled.
The pregnant woman does not limit herself to ‘feeding’ the foetus, she alters the expression of its genes; the uterine microenvironment gives it much more than nutrients and oxygen: it gives it antibodies and emotions, and reprogrammes its genes (possibly conditioning future pathologies and perhaps behaviours of the person who is going to be born)” (pp. 29-30).
Taking both these considerations, and the fact that we know that foetal deformities or illnesses can occur and that to a greater or lesser extent any pregnancy entails risks for the pregnant woman’s physical and mental health [see Article 8(10), LPMA, and Article 142(1), CP], as a starting point, we can conclude the following in relation to the gestation process:
– That it is a phenomenon which is dynamic and unpredictable with regard to a series of possible vicissitudes that can affect both the foetus/unborn child and the pregnant woman.
– That, as part of it, a biological and potentially loving/emotional relationship forms between the pregnant woman and the foetus.
– That that process can also interfere with the surrogate’s own understanding of herself.
These characteristics of pregnancy decisively condition both the possibility of a full clarification or the provision of complete information ex ante, and consequently the surrogate’s own position vis a vis the beneficiaries: inasmuch as it is not possible to anticipate and foresee what is going to happen in the various phases, from the implant of the embryo to the handing over of the child, one can doubt whether it is possible for there to be a consent which is sufficiently informed and which, as such, is given in full awareness of all the possible consequences. In the absence of sufficient clarification, the choice that is made cannot be deemed truly free either. Under such conditions, in the event the surrogate comes to oppose the execution of the gestational surrogacy contract, one must conclude that any forced execution thereof or any monetary penalty for failure to fulfil it must be seen as an effect on her personality to which she has not really consented.
In any case, nor do the aforementioned characteristics of gestation make it possible to exclude – on the contrary, they can instead be said to justify – a possible change in the circumstances which subjectively determined the surrogate’s consent, in turn meaning that the initial parental project no longer matches her will. The consequence of the fulfilment of such a hypothesis would again be that at the moment of its execution, the surrogate’s obligations under the gestational surrogacy contract no longer correspond to her will, in the sense that she would have to be forced to fulfil them, either directly – e.g. by handing over the child – or perhaps more often indirectly, by payment of compensation. However, given the highly personal nature of such obligations, they are only compatible with the surrogate’s dignity to the extent that their fulfilment corresponds to actions which she undertakes voluntarily.
In truth, and as we mentioned earlier, from the surrogate’s point of view, that which legitimates her intervention in the gestational surrogacy process is the free and responsible affirmation of her personality – a means of exercising the fundamental right to the development of one’s personality enshrined in Article 26(1), CRP, which is ultimately founded on her dignity (see § 28 above). Now, that right has to be ensured throughout all the phases into which the gestational surrogacy process is divided: entry into the contract, application of the MAP techniques, pregnancy, childbirth, and the handing over of the child to the beneficiaries. Consequently, both an insufficiency of information that might flaw the surrogate’s initial consent, and a subsequent and unpredictable alteration of her will as a result of vicissitudes that occurred during the gestation or the childbirth, justify the possibility that there may occur situations which were not considered in the consent she gave in advance and are therefore incompatible with the affirmation of her personality. In other words, if the surrogate no longer wants to carry on with the gestational surrogacy process as outlined in the applicable contract, it also ceases to be possible to consider that her participation in that process corresponds to the exercise of her right to the development of her personality.
As such, given the abovementioned physical, biological, mental and potentially emotional characteristics of pregnancy and childbirth, the revocability of the consent that was given to begin with is the only guarantee that the fulfilment of the specific obligations in each phase of the process is still voluntary and therefore corresponds to the exercise of that right. A pure and simple self-binding before the gestational surrogacy process begins does not make it possible to adequately ensure that voluntariness throughout the entire process. To put it another way, the aforesaid revocability represents an essential guarantee of the effectiveness of the surrogate’s right to the development of her personality, which is itself a fundamental foundation of the Portuguese gestational surrogacy model. Like the requirements that there can be no profit or economic subordination if the freedom of the initial consent is to be ensured, this revocation must also be free, at least in such a way as to exclude any form of compensation. The fact is that the contractual obligations presuppose consent, so if that consent disappears, they cannot continue to exist either and there is no place for the existence of any breach of contract.
Symmetrically, the establishment of legal limits on the revocability of the surrogate’s consent equates to the imposition of an equal set of restrictions on her right to the development of her personality, namely in order to safeguard the interest of the beneficiaries and their parental project. Despite being binding from the start, in order to guarantee her personal dignity, the surrogate’s consent must remain effective throughout the whole gestational surrogacy process, namely while she is fulfilling the essential obligations under the gestational surrogacy contract (see §§ 39 and 42 above). As a result, the imposition without exception of the binding nature of that consent (which is given before the embryo is transferred) all the way until the end of the gestational surrogacy process (despite the fact that that consent cannot be regarded as truly informed due to the unpredictability of all the vicissitudes that can arise during both the gestation period and the childbirth itself, and the fact that it is not possible to foresee changes in essential subjective circumstances that may occur during this period of time) amounts to a severe limitation on the said requirement for the consent to be current. Being bound by a consent which was given in the past does not preclude the possibility that, for admissible reasons inherent in the necessarily incomplete nature of the initial information or the dynamic of the pregnancy itself at any moment until after the childbirth, the surrogate then finds herself facing an obligation – to go on with a pregnancy involving a child who is destined for the beneficiaries, or to go ahead and hand that child over after he/she is born – whose fulfilment no longer matches her deepest will and instead constitutes an act of violence for her. Now the thing is that the consent which is required of her in order to take part in a gestational surrogacy process is also designed to prevent these types of situation, inasmuch as they turn – and degrade – something that was intended to be an act of active solidarity into an instrumentalisation that harms her personal dignity.
Article 14(4), LPMA, whose applicability to the surrogate is due to a referral from Article 8(8), LPMA, and is confirmed by the provisions of Article 14(5) (“the provisions of the previous paragraph are applicable to the surrogate”), only allows her to freely revoke her consent “until the beginning of the therapeutic MAP processes”. What is at stake in this case is the defence of the beneficiaries’ interests in the face of a possible “change of mind” or “remorse or regret” on the surrogate’s part that is reflected in her desire to distance herself from the beneficiaries’ parental project, in which she had previously been willing to participate (see §§ 24 and 28 above).
44. The surrogate can desist from the beneficiaries’ parental project either because she doesn’t want to take the gestation to the end and wants to have an abortion, or on the other hand, because she does want to take the pregnancy to the end and to assume a parental project of her own. Given all this, we must analyse whether – and in what cases – the prohibition on revoking her consent laid down in the abovementioned Article 14(4), LPMA, is legitimate or excessive in the light of the interests at stake.
Naturally, the beneficiaries may also want to desist from their own parental project for supervening reasons (namely in the event of divorce, incurable illness, or even the death of one of them, but also if foetal deformities or illnesses are detected in the meantime). However, the simple reality is that the combination of the aforementioned asymmetry in the obligations undertaken by the beneficiaries and the surrogate in relation to the gestational surrogacy (see § 42 above) and the fact that, even if all the legal conditions for an abortion are met, no woman can be forced to terminate a pregnancy against her will, means that after the uterine transfer – i.e. once the embryo has been implanted in the surrogate’s uterus – the beneficiaries cannot go back on their undertaking, nor can they require the surrogate to do so, even if she does not want to assume a parental project of her own in relation to the unborn child she is carrying in her womb. The only solution in such cases would thus be for the beneficiaries to give up the child born in the wake of the use of gestational surrogacy – who is their child, according to Article 8(7), LPMA – for adoption [on the questions raised by the various hypotheses under which parties to a gestational surrogacy contract may regret their choice, see VERA LÚCIA RAPOSO, “Tudo aquilo que você sempre quis saber sobre contratos de gestação (mas o legislador teve medo de responder)” in Revista do Ministério Público, no. 149 (January-March 2017), pp. 9 et seq., especially pp. 15 et seq. and 31 et seq.].
In addition, the possibility that the parties agree to revoke the gestational surrogacy contract after the uterine transfer has already taken place – a hypothesis for which no express provision is made and which could pose difficulties because the contract has to be authorised in advance – should also have been considered. However, if we look at things carefully, that possibility ends up leading back to the situation in which the surrogate revokes her consent, either because she doesn’t want to take the gestation to its conclusion, or because she wants to assume a parental project of her own. The difference lies in the fact that such a revocation would occur in a situation in which there was no conflict with the beneficiaries’ will.
45. With regard to the possibility that the surrogate may want to remove herself from the beneficiaries’ parental project because she doesn’t want to take the pregnancy to the end, one might think that such a situation would be encompassed by Article 8(10), LPMA. However, this precept merely states that the gestational surrogacy contract “shall obligatorily set out, in conformity with the legislation in force, the provisions to be fulfilled in cases in which foetal deformities or illnesses occur and in cases in which there is a voluntary termination of the pregnancy”. That is, this provision does not enable the surrogate, in her own right and without the need for compensation, to undergo a voluntary termination of the pregnancy (“abortion”) in the situations in which the law guarantees that possibility, as provided for in Article 142 of the Penal Code, and Law no. 16/2007 of 17 April 2007.
This interpretation is confirmed by Regulatory Decree no. 6/2017, albeit in any case the latter reserves the woman’s ability to choose to have an abortion during the first ten weeks of pregnancy [see Article 4, with reference to Article 142(1)(e), CP]. With regard to the other situations in which the law provides for abortion the model contract must contain clauses aimed at regulating “in conformity with the current legislation, the provisions to be fulfilled in cases in which there is a voluntary termination of the pregnancy” [see ibidem, Article 3(3)(h)].
In the model contract that has been approved to date, this situation is already taken into account under the clause governing “revocation of the contract”, without prejudice to the surrogate’s obligation to reimburse the beneficiary couple for the expenses they have incurred (see Clause 8). It is also possible for the “contract to be unilaterally terminated by any of the parties, without giving rise to the payment of any compensation” in cases of an abortion carried out under Article 142(1)(1) or (b), CP: elimination or prevention of a danger of death or serious and irreversible (or lasting) injury to the body or the physical or mental health of the pregnant woman.
However, where the situations provided for in subparagraph (c) of the same Criminal Code precept (the existence of “safe reasons to foresee that the unborn child will come to incurably suffer from a serious illness or congenital deformity, and [the abortion] is carried out in the first twenty-four weeks of pregnancy, with the exception of situations involving unviable foetuses, in which case the abortion can be performed at any time”) are concerned, clause 9 of the model contract states that the decision to undertake the abortion “shall jointly pertain to the beneficiary couple and the surrogate” (italics added); while if the surrogate, “against the declared will of the beneficiary couple” (italics added), does not go ahead with the abortion in those situations, she is obliged to compensate the couple for the material and non-material damages they suffer as a consequence of the birth of a child under those conditions (see Clause 10).
In short, the references to provisions regarding a voluntary termination of pregnancy contained in Article 8(10), LPMA, do not ensure that in all the circumstances in which an abortion is permitted at the choice of the pregnant woman [at this point, we can disregard the situation provided for in Article 142(1)(d), CP – pregnancy resulting from a crime against sexual freedom and self-determination – because it is not relevant in casu] under the current law, the surrogate may also terminate the pregnancy on her own and without penalty at an official or officially recognised healthcare establishment. As such, the limitation on the revocability of her consent laid down in Article 14(4), LPMA, which is applicable by referral from Articles 8(8) and 14(5), opens the way to a conditioning intervention by the beneficiaries in this domain. Our earlier analysis of some of the clauses of the model contract proves exactly this.
It is even more important to verify that all the de facto situations we have mentioned where abortion is not punishable – at the choice of the pregnant woman up until the tenth week of pregnancy, danger to the pregnant woman’s life or physical or mental health, or serious danger that the unborn child may incurably come to suffer from a serious illness or congenital deformity – are also circumstances in which it is admissible and justifiable for the gestational surrogate to change her mind about the pregnancy, namely when she does not want to carry it to its conclusion. Within the overall gestational surrogacy framework, we would say that the choice to have an abortion, in the cases and under the terms in which the general law permits it, represents an essential guarantee of the effectiveness of the surrogate’s right to the development of her personality. However, due to the impossibility of revoking her consent, the full breadth of that choice is not safeguarded (namely with regard to the exclusion of penalties; on the topic of the liability of the surrogate in cases of voluntary termination, see VERA LÚCIA RAPOSO, “Tudo aquilo que você sempre quis saber sobre contratos de gestação…” op. cit., pp. 33-34).
46. In fact, while this limitation on the withdrawal of consent is not inappropriate to or unnecessary for the protection of the beneficiaries’ parental project and interests and expectations, it is excessive in the way it limits a fundamental right of the gestational surrogate.
We should recall that it is she, in the exercise of her personal autonomy, who agrees to take part in the beneficiaries’ parental project, thereby rendering it viable (see §§ 24 and 28 above). The beneficiaries only enjoy the legal possibility (see § 27 above) of using gestational surrogacy to try to implement a parental project of their own, but that project nonetheless depends on the willingness of someone who, for solely altruistic reasons, makes herself available to undertake personal obligations which, were that altruism not recognised to be a free externalisation of her personality, would represent an unacceptable instrumentalisation of her person. In other words: the parental project in question is not founded exclusively on the beneficiaries’ desire for parenthood; the surrogate’s will that they be the parents of the child to whom she comes to give birth is no less essential. As such, neither the beneficiaries nor the gestational surrogate can fail to be aware that the voluntary nature of the obligations which characterise the gestational surrogacy contract is essential to its fulfilment.
The characteristics that are specific to pregnancy as a biological, psychological and potentially emotional phenomenon with a nature that is dynamic and unpredictable where a variety of vicissitudes are concerned mean that one cannot be sure that the will initially manifested by the surrogate is entirely informed and incapable of changing due to unforeseen developments that occur during the gestational process itself (see § 43 above). There may therefore come a point when the obligations that were contractually undertaken and assumed a priori cease to correspond to the surrogate’s will, in such a way that their fulfilment no longer represents an affirmation of her freedom of action and self-determination. For admissible reasons, the initial consent thus ceases to be current.
In such circumstances, forcing her to fulfil those obligations – in the case in question here, in some way conditioning the surrogate’s ability to leave a parental project she no longer shares, with the goal of ensuring that that project continues to be pursued until the child is born – would imply the instrumentalisation of the surrogate, seriously interfering with her capacity for self-determination and with her personal dignity. The framework within which, in the exercise of her right to the development of her personality, the surrogate consented to the gestational surrogacy has now proven to have changed in a way which means that going ahead with that gestation no longer constitutes a manifestation of that right. However, and as we said earlier, that is the fundamental precondition for the legitimacy of the gestational surrogate’s intervention and participation: in the absence of a current positive will, her participation is degraded into an instrument in the service of the beneficiaries’ will. This is why it is important to make sure that her will continues to be the same throughout the whole process – something that is only possible if one permits the free revocability of the surrogate’s consent up until the point at which all the essential obligations of the gestational surrogacy contract have been fulfilled.
From the beneficiaries’ side of things, allowing that revocation implies subordinating the fate of the parental project they designed – and to which they have also made a decisive contribution by supplying gametes that were essential to the formation of the embryo which was transferred to the surrogate’s uterus – to the free exercise of the surrogate’s will, thereby frustrating legitimate expectations on their part that it would be possible to have a family that included children of their own.
However, the truth is that the project in question depends on the surrogate’s active solidarity from day one; it is never autonomous. As we mentioned above, the project is in a sense shared by the beneficiaries and the surrogate (see §§ 8 and 24 above), and the fact is that this sharing based on an active solidarity is present throughout the entire process. Seen from this perspective – the only one that makes it possible to legitimate the beneficiaries’ parental project in the light of the principle of the surrogate’s human dignity (see § 28 above) – the revocation of the consent in the event that that solidarity disappears is not alien to the parental project itself, but rather a possibility within that project which cannot be eliminated.
Furthermore, within a framework like the one described above, the surrogate’s decision to leave the parental project to which she initially adhered – and particularly her will not to take the gestation to its term in any of the situations in which the general law does not punish abortion – is taken for reasons that are weighty and admissible (indeed, they are deemed to be so by that same law), so the seriousness of this decision of her decision cannot be underestimated or ignored.
When comparing the relative weight of the beneficiaries’ expectations that are protected by the irrevocability of the surrogate’s consent on the one hand, with the sacrifice – almost total at a given moment in time – of the fundamental right to the development of her personality caused by that irrevocability whenever certain situations are at stake on the other, the disproportion between the two is manifest. The inconveniences and frustrations experienced by the former do not justify instrumentalising the latter in order to avoid them. If such an instrumentalisation were to occur, it would constitute a violation of that fundamental right when interpreted in the light of the principle of the dignity of the human person. The only way to guarantee that this cannot happen is, as was mentioned earlier, to safeguard the surrogate’s ability to revoke her consent beyond the point at which the therapeutic MAP processes begin.
As such, the limitation on the revocability of the surrogate’s consent that is established as a consequence of the referrals by Articles 8(8) and 14(5), LPMA, to Article 14(4), LPMA, is unconstitutional because it disproportionately restricts her right to the development of her personality, when interpreted in the light of the principle of the dignity of the human person [Articles 1 and 26(1) CRP, taken in conjunction with Article 18(2), CRP].
47. These considerations are also applicable in the event that the gestational surrogate abandons the beneficiaries’ parental project because she wants to take the pregnancy to its end and to assume a parental project of her own. The existence of competing positive desires to take on the parenthood of the child who is going to be, or has already been, born undeniably makes the weighing-up process much more complex, namely because it is also necessary to consider the child’s interests. In such a situation, the pregnancy is taken to its conclusion and both the beneficiaries and the surrogate will want to undertake parental responsibilities in relation to the born child.
This possibility is not legally permissible, not only due to the limit on the revocability of the surrogate’s consent laid down in Article 14(4), LPMA, as analysed above, but also because of the special rule on the establishment of filiation set out in Article 8(7) of the same Law (always presupposing the existence of a valid, effective gestational surrogacy contract): the “child who is born with recourse to gestational surrogacy shall be deemed to be the son/daughter of the respective beneficiaries”.
As we concluded from our earlier analysis, these rules are neither inappropriate to nor unnecessary for safeguarding the beneficiaries’ position. However, they fail to bear in mind that during the pregnancy and up until the childbirth, the only relationship that exists with the child who is going to be born is the one established between the surrogate and the unborn child – a relationship that is relevant on both the biological and epigenetic levels and the loving and emotional planes: the pregnant woman alters each embryo’s genetic expression, while in the other direction, the embryo/foetus changes the pregnant woman forever; and it is during the gestation that a loving emotional bond is established between the unborn child and the pregnant woman (see § 43 above). The rules in question here also fail to consider that, from the moment of the child’s birth, his/her interest must be the primary criterion for all the decisions that are taken with regard to his/her fate [see Article 3(1), Convention on the Rights of the Child, and § 33 above].
The matter of whether the relevant desire on the part of the surrogate is voiced before or after the childbirth is not decisive to our analysis of the validity of those norms. The key moment is that at which the last of the contract’s essential obligations – the handing over of the child to the beneficiaries – is fulfilled. The fact is that besides being the moment at which the surrogate executes the part of the gestational surrogacy contract which is still missing and which is up to her to undertake, that act – assuming it is undertaken voluntarily – is comparable to giving consent to adoption [see Article 1981(1), CC]. As a consequence, what is important is the revocation by the surrogate of her initial consent before she voluntarily hands the child to whom she has given birth over to the beneficiary couple. After that moment, a new relationship is established between that couple and the new-born child, and the surrogate ceases to possess arguments that would justify changing her mind [analogously, on adoption see Article 1983(1), CC].
On the other hand, the solution to the problem of competing parental projects is not influenced by the fact that both beneficiaries are genetic progenitors of the child (because the embryo was formed with gametes from both of them), or that just one of them is. The only thing that is at stake here is the choice between the beneficiaries’ parental project and that assumed by the surrogate.
The positions of the surrogate and of the child who has been born must be analysed separately.
With regard to the former, the remarks that were made in § 46 above on weighing up the surrogate’s right to the development of her personality against the beneficiaries’ interest in defending their parental project remain valid here. However, in the present situation the reasons for the surrogate’s decision to desist from that project are linked not only to the protection of personal assets of hers (perhaps in combination with her perception of what might be good or bad for the child who would be born of that project) – as was the case in relation to the abortion option which is available until the foetus reaches ten weeks, or when there is a danger to her life or physical or mental health, or there is a serious risk that the then unborn child would come to incurably suffer from a serious illness or congenital deformity – but also to her desire to continue a relationship with the child who is born within the framework of a parental project that is competing with the one whereby the beneficiaries, at an initial point in time, contributed their genetic material so that such a relationship could be established .
There can be no doubt that on the surrogate’s side, weight must be attached to the arguments which we set out earlier and are derived from both her right to the development of her personality and the requirements that the consent remain current, in such a way as to ensure that the fulfilment of the essential obligations under the gestational surrogacy contract constitutes an affirmation of her freedom of action and self-determination. In the hypothesis we are considering now, her position becomes even stronger because, based on a parental project of her own for the child who developed in her womb and to whom she gave birth, she also wants to exercise her own right to form a family, albeit with a child in relation to whom she cannot be deemed a genetic progenitor. Notwithstanding this new wish, it is less clear that her reasons should always prevail over those of the beneficiaries. At the end of the day, that which is at stake for the latter is also the affirmation of a parental project of their own that makes it viable for them to have a family with a child who is, at least in part, genetically theirs.
However, the normative solutions we are analysing impose the opposite consequence: the absolute prevalence of the beneficiaries’ reasons, leaving no room in which to weigh up, case-by-case, those which the surrogate would legitimately be able to invoke. The result of this total failure to consider the surrogate’s position is the risk that she will be instrumentalised, as described above, in a way that is incompatible with respect for her right to the development of her personality, interpreted in the light of the principle of the dignity of the human person, when in fact, due to vicissitudes that occurred during the pregnancy or the childbirth and to the beneficiaries’ own behaviour, one ought not to exclude the possibility that separating the child from the surrogate would represent a greater sacrifice for the former than not handing him/her over to the beneficiaries would represent for them.
It is also necessary to consider the child who has been born in the meantime and whose handing over is at stake, inasmuch as it is his/her interest that must preside over the solution to the conflict between the two parental projects. It is true that under the rules we are analysing here, such a conflict should not be able to occur. However, given that one must consider the surrogate’s position, bearing in mind both the requirements of her fundamental right to the development of her personality and the constitutive importance of the intrauterine relationship, the importance of the child cannot be obscured: he/she cannot be treated as a simple object in a dispute between third parties. Given that, bearing in mind the surrogate’s fundamental interests, the conflict between the parental projects of the beneficiaries and that of the surrogate must have some sort of legal relevance, the primary criterion for solving that conflict must be the best interests of the child. This can only take place by means of a case-by-case assessment; otherwise, we would be denying the child her/his status as a subject of rights, in violation of his/her dignity, and the state would be in breach of its duty to protect childhood [Articles 1, 67(2)(e) and 69(1), CRP; also see § 35 above].
In short, the limitation on the revocability of the surrogate’s consent established as a consequence of the references made in Articles 8(1) and 14(5), LPMA to Article 14(4) is unconstitutional because it excessively restricts both the surrogate’s right to the development of her personality, interpreted in the light of the principle of the dignity of the human person, and her right to form a family [Articles 1, 26(1) and 36(1), taken in conjunction with Article 18(2), all CRP]. As a result, and for the same reasons, this finding also extends to the norm contained in Article 8(7), LPMA, according to which the child who is born with recourse to gestational surrogacy is always deemed to be the son/daughter of the respective beneficiaries. The truth is that establishing a special criterion for the filiation of a child born via gestational surrogacy, based on the assumption that the surrogate gave her free, informed consent to that form of procreation, fails to provide for the possibility of her revoking that consent (a revocation that in turn implies the applicability of the general filiation criterion laid down in the Civil Code) – a possibility that is a necessary condition if the surrogate’s right to development is to be safeguarded throughout the gestational surrogacy process.
B.6.2. The questions regarding the regime governing the nullity of free-of-charge gestational surrogacy contracts
48. With a view to safeguarding the Portuguese gestational surrogacy model on the Civil Law level, Article 8(12), LPMA, states: “Whether they are for profit or are free of charge, gestational surrogacy transactions that do not respect the provisions of the previous paragraphs are null and void”.
Nullity is the consequence applicable to transactions that are entered into against the law (see Article 294, CC). In general terms, nullity “is invokable at any time by any interested party, and can be declared by any court on its own initiative”; that declaration has retroactive effect, and means that “restitution [must be made for everything] that has been provided, or if restitution in kind is not possible, the corresponding amount [must be paid]” [see Articles 286 and 289(1), CC]. The legal effects of a transaction that is declared null and void are eliminated from the legal order.
One of the intended effects of the use of gestational surrogacy is the establishment of the legal filiation relationship between the child to whom the surrogate has given birth and the beneficiaries – i.e. with the persons who entered into the gestational surrogacy contract with the surrogate [see Article 8(7), LPMA, and § 8 above]. In the event that the effects of that contract are eliminated from the legal order because it has been declared null and void, and in the absence of specific regulations, that special filiation rule thus ceases to apply and the matter is thenceforth governed by the general law: where the mother is concerned, filiation results from the fact of birth [Article 1796(1), CC]. As such, the surrogate is thenceforth deemed to be the child’s mother.
Although one cannot absolutely exclude other understandings, particularly those based on historical, teleological and systematic interpretative elements, the truth is that the above outcome presents itself as the most plausible, both from the literal point of view, and given the way in which the exceptional nature of the gestational surrogacy contract’s lawfulness is established in legal terms (see § 7 above). Moreover, in an abstract review case, the Constitutional Court is unable to impose alternative interpretations that might be seen as more in harmony with the constitutional conformity of the regime in question, so the norm before us here must be seen as possessing that meaning.
While the solution we are analysing here is coherent with the establishment of legal requisites for the validity of the gestational surrogacy contract, and likewise, with the criminalisation to which Article 39, LPMA, subjects entry into such contracts (be they free of charge or for-profit) outside the case provided for in Article 8(2 to (6), LPMA, the truth is that it can lead to undesirable results. The fact that the Law provides for the applicability of a mere nullity regime to gestation contracts in situations in which the latter are in breach of the applicable LPMA regime, without carefully regulating the possible consequences for the child’s filiation that might ensue from that null transaction, could seriously undermine the child’s best interests. What is more, there can be no doubt that the child did nothing whatsoever to contribute to the illegalities that have been committed.
49. The gestational surrogacy contract is subject to prior authorisation and is supervised by the CNPMA, which means that any problems regarding its lawfulness are, in principle, precluded in this way. Even so, the rigidity of the nullity regime – namely in terms of the ability to invoke causes of nullity at any time – and the uniformity that results from the retroactive elimination of all the legal effects derived from the declaration of nullity, pose difficulties in the face of the diversity of possible situations and the dynamic of life itself, above all after the gestational surrogacy contract has already been fully executed.
We should begin by noting that the process of verifying the fulfilment of the negative preconditions provided for in Article 8(5) (the absence of “Any type of payment or the donation of any item or amount” by the beneficiaries to the surrogate) and (6) (the absence of any economically subordinate relationship), LPMA, is itself not free from doubt, all the more so in that no provision is made for appropriate verification procedures, either during or after the execution of the gestational surrogacy contract. This fact, combined with the possibility that any interested party can at any time raise doubts as to fulfilment of those preconditions, undermines confidence in the filiation established by law.
One can imagine, for example, the hypothesis that a few years after the child who has been born in the wake of a gestational surrogacy contract has been handed over to the beneficiaries – and the child’s ensuing registration as their son/daughter – it is discovered that after all the beneficiaries with whom the child is now living made payments to the surrogate which exceeded by a certain percentage the amount of the “expenses derived from the healthcare that is effectively provided” [Article 8(5)]. Should everything go back to the beginning, disregarding the bonds established by living together in the meantime? Is the length of time that has passed since the child was handed over indifferent? Or the moment at which the excess payment was made – before, during, or only after the contract was executed? And the extent of the excess that has been detected? Must the solution always be the same if that excess was 10%, 100% or 1,000%?
However, the nullity regime may also prove inappropriate in relation to the other preconditions as well. For example, proving compliance with the precondition set out in Article 8(2) may also give rise to doubts, given the indeterminate nature of the concept “clinical situations that justify” exceptionally resorting to gestational surrogacy.
The excessive rigidity inherent in the ability to invoke nullity without any time limit becomes clear when confronted with the possibility that the criminal proceedings regarding the crimes typified in Article 39, LPMA, can lapse due to prescription after two or five years, depending on the maximum applicable penalty [see Article 118(1)(c) and (d), CP]. Nor does the nullity regime allow differentiations depending on either the gravity of the particular cause, or the reality created in the wake of the execution of a contract that is null and void.
In cases in which the oocyte that was used belonged to a third-party female donor, the solution with regard to maternity laid down in the general law is strengthened by Article 10(2), LPMA, under which “the donors may not be deemed progenitors of the child who is going to be born”. This sets aside the solution whereby maternity pertains to the third-party donor, which would manifestly not make sense, in that she donated the oocyte without any parental project in relation to the child who was to be born. However, where the situation in terms of paternity is concerned, the male beneficiary whose genetic material was used in the conception must continue to be considered the father, inasmuch as he is not just some “third-party donor” for the purposes of the aforesaid precept. Having said that, the truth is that the male beneficiary’s gametes were ceded as part of the implementation of parental project in which the child’s mother was to be the female beneficiary, and not the surrogate, who in principle also agreed to participate in the process without wanting to be the mother of the child to whom she was going to give birth. The situation is even more problematic if the embryo was also conceived from an oocyte taken from the female beneficiary: the “genetic and social mother” with a parental project for the child loses maternity to the “legal mother”, who actually doesn’t want to be the child’s mother and has no parental project in relation to him/her. It is easy to understand that, in a situation like this, the uncertainty and the countless legal, family and inheritance-based implications for the child are extremely relevant, and that it falls to the state to protect him/her as far as possible, by modelling the legal regime appropriately.
The insufficiencies and inappropriateness of such an undifferentiated regime were also criticised by the CNECV, even in relation to the original text of Article 8, LPMA, whose paragraph (1) condemned transactions involving “surrogate motherhood” to nullity, with paragraph (3) imposing the pertinent consequence that the “woman who undergoes a surrogate pregnancy for another woman shall, for all legal purposes, be deemed the mother of the child who comes to be born”. In the words of Opinion no. 63/CNECV/2012:
“Ethical reservations are also warranted by the solution set out in the present Law (…), according to which, in situations in which surrogate motherhood occurs in contravention of the provisions of the law, the gestating mother is deemed the mother of the child who is born in this process for all legal purposes [Article 8(3) of the current Law].
Given its rigidity, the fact that it is does not allow for the consideration of the concrete circumstances and that it is not complemented by other guarantees (one possibility might be subjecting it to assessment of the circumstances of the case in question by a court), a solution of this type can only be justified as a means of imposing a sanction and an attempt to dissuade [people from engaging in] illegal behaviours and practices.
However, in practical terms its inflexibility may mean that, contrary to the child’s interest, one is imposing his/her filial tie on someone who rejects it and never assumed it as part of a parental project, or alternatively, causing the child’s possible institutionalisation (e.g. in a situation in which the mother is sentenced to imprisonment for illegally engaging in the gestational surrogacy), while always simultaneously depriving him/her of the tie to the people involved in the respective parental project, who may even be his/her biological progenitors” [see point 2(c), pp. 10-11].
Taking these considerations as its basis, the Council reached the following conclusion:
“Because it may be contrary to the child’s interests and because it can lead to absurd situations, the CNECV hereby manifests its ethical reservation in relation to the current legislative solution (…), under which gestational surrogacy engaged in against the provisions of the law inflexibly determines that, for all legal purposes, the surrogate mother is necessarily deemed the mother of the child conceived in that way. [The CNECV] instead suggests that it be left to the judge to look for the solution that is most appropriate in the light of the circumstances of the case, at least for the purposes of [the child’s] tutelage and care” (see ibidem, III, no. 3, p. 12).
50. In reality, the possibility that a simple (as opposed to a qualified) failure to fulfil any precondition (and not just fundamental preconditions, such as the fact that the surrogate cannot be the donor of any oocyte used in the concrete procedure in which she is a participant, for example) can, at any time, serve as grounds for questioning the validity of the surrogacy contract makes it possible to create a degree of uncertainty and lack of definition with regard the filiation that has already been established – something that is not compatible with the legal certainty required in matters concerning personal status. The legal solutions that are adopted must always ensure that the legal positions defined in this domain can be consolidated, and that from the moment at which that consolidation occurs, they can no longer be questioned, except for imperative reasons that are in the public interest or conflict with fundamental interests pertaining to the private individuals concerned. However, the regime laid down in Article 8(12), LPMA, not only doesn’t allow that consolidation, it doesn’t differentiate between the causes invoked in order to justify a declaration of nullity, in accordance with their seriousness or the point in time. That solution is therefore incompatible with the principle of legal certainty derived from the principle of a democratic state based on the rule of law enshrined in Article 2, CRP.
At the same time, the abstract nature of the regime and the automatic nature of the legal effects associated with it mean that it is not able to provide for the solution which concretely proves to be the most appropriate to the full development of the child who is born in the wake of a gestational surrogacy contract that is null and void. In this regard, and as this Court has found in the past, we should recall that legal filiation is one aspect of the right to personal identity enshrined in Article 26(1), CRP:
The “legal establishment of filiation ties, with all their effects and the conferral on the individual of the status inherent in the condition of being the child of certain persons, also plays an important role in the individualising characterisation of a person in the life of society. Ancestry serves here as one of the elements that identify each person as a singular individual. ‘Being the child of’ is something that distinguishes and characterises us in relation to others, so the right to personal identity also includes the right to the legal establishment of maternity and paternity” (see Ruling no. 401/2011).
The specific undifferentiated solution, with its ex lege effects, that is adopted by the nullity regime precludes consideration of this fundamental interest on the part of the concrete child concerned – his/her right to personal identity, as provided for in Article 26(1), CRP – and we can conclude that in adopting it, the legislator failed to ensure that “the best interests of the child shall be a primary consideration”, as required by Article 3(1) of the Convention on the Rights of the Child. To this extent, the legislator was in breach of the state’s duty to protect childhood, as enshrined in Article 69(1), CRP.
B.6.3. The question of the indeterminability of the legal regime governing the gestational surrogacy contract
51. When entered into in accordance with the law, the gestational surrogacy contract makes it legally possible for a child born from the womb of one woman – the surrogate – to be deemed the son/daughter of another – the female beneficiary. With a view to this, that contract must establish rules for concrete forms of behaviour on the part of the surrogate that cover the way in which she collaborates with the whole process, exercising both her fundamental right to the development of her personality, and the freedom not to form a family with a child to whom she has given birth (see §§ 28 and 8 above respectively). However, from the moment at which it is permitted by law, that contract also gives the beneficiaries the possibility of procreating – i.e. of forming a family with a child who is genetically theirs. At the same time, one of the legal conditions for such a contract to be admissible is that it must have been authorised in advance by the CNPMA, and its content must be supervised by that Council [see Article 8(3), (4) and (10), LPMA].
The thing is that the legislator limited itself to providing for the necessary existence of provisions on certain matters – namely “the provisions to be fulfilled in cases in which foetal deformities or illnesses occur and in cases in which there is a voluntary termination of the pregnancy” – and to prohibiting provisions which impose “behavioural restrictions on the gestational surrogate” or “norms that infringe on her rights, freedom and dignity” [see ibidem, paras. (10) and (11)], without offering any other indications as to the positive and negative limits with which the parties must comply when they shape the content of the contract. In this respect Vera Lúcia Raposo says:
“In short, the norms on the surrogacy contract are both scarce and dubious. In such a way that the content of and regime governing those contracts will be almost entirely constructed by the parties themselves on the one hand; and by contract law on the other. However, although contractual freedom must certainly play a decisive part on this respect, the legislator should have regulated certain issues, as is usually the case with regard to contracts that are more susceptible to abuses of contractual freedom (…)
Making provision for a legal format and imposing a couple of restrictions on it is not [the same as] regulating it, and given their special sensitivity and the rights and interests involved, these contracts would deserve (and need) that kind of regulation. (…)
[The] specificities which [the gestational surrogacy contract] presents (indeed, it is not even a typical contract) and the special sensitivity of the interests involved require that the contractual rules be suitably adapted, especially with regard to contractual liability. However, it so happens that the legislator chose not to intervene. Law no. 32/2006 says practically nothing about the content of the contract and the consequences of failing to fulfil it, and the few norms it does contain in this respect generate more doubts than answers. As such, it will be up to the CNPMA, the courts and perhaps the parties to create regulations for surrogacy contracts that are more appropriate to these scenarios than are those strictly derived from the CC” (see VERA LÚCIA RAPOSO, “Tudo aquilo que você sempre quis saber sobre contratos de gestação…”, op. cit., pp. 10 and 23-24).
The truth is that the Law is silent with regard to both the criteria for the prior authorisation of gestational surrogacy contracts, and the supervision of their content, which in turn conditions that authorisation; and yet, for reasons of equality, those criteria cannot but be uniform for every contract, and in particular, bearing in mind the nature of the subject matter, must especially be so when it comes to the meaning of the aforementioned mandatory clauses and the scope of the prohibited restrictions. In other words, the definition of those criteria is essential to the operationalisation of the gestational surrogacy process.
Nor did the legislator itself fail to acknowledge the need to regulate Article 8, LPMA, with the new wording given to it by Law no. 25/2016. As such, it laid down in the latter’s Article 4(2) that the amendments which Law no. 25/2016 made to Article 8 (and to Article 39), LPMA, were only to enter into force on the same date as the regulations provided for in Article 3.
This regulation process was undertaken in Regulatory Decree no. 6/2017 of 31 July 2017, whose preamble reads as follows:
(The consultation and the reflection process that took place resulted in) “the identification of matters whose regulation is deemed relevant, now that access to gestational surrogacy [has been made possible] by Law no. 25/2016 of 22 August 2016. It now falls to the Government to create the conditions needed for the full implementation of the solutions adopted by the parliamentary legislator.
As such, and by means of the present Regulatory Decree, it is important to define both the prior authorisation procedure to which the entry into gestational surrogacy transactions is subject, and the gestational surrogacy contract itself, whose supervision pertains to the CNPMA (…).”
In this legislative act, the government begins by saying that one of the requisites for the prior authorisation of the entry into gestational surrogacy contracts is “acceptance by the beneficiary couple and the gestational surrogate of the terms and conditions set out in the model gestational surrogacy contract” [Article 2(2)(b)]. Article 3(1) then says that the “CNPMA shall approve the model gestational surrogacy contract, which shall contain the essential elements of the contract, and shall make it available on its website”, and paragraph (3) of the same Article, that “among others, the model contract shall contain clauses whose object is” how to handle questions concerning a number of matters listed in the next subparagraphs.
52. The present case does not involve either specifically or primarily considering the content of the norms approved by Regulatory Decree no. 6/2017, let alone the text of the model contract that has already been approved by the CNPMA (see §§ 4 and 5 above). The question of constitutionality before us here is rather that of whether it is legitimate, in material or substantive terms, to leave the definition of the essential conditions under which citizens can gain access to gestational surrogacy to infra-legislative acts.
The fact is that the aforementioned absence of a set of positive legal rules for the content of the gestational surrogacy contract reflects the legislator’s option to limit itself to establishing a very broad and open framework for: (i) the matters that must obligatorily be covered within the scope of that contract [Article 8(10)]; and (ii) the restrictions that must obligatorily be excluded from it [Article 8(11)]. In addition, the Law gives the CNPMA the power to supervise the content of the contract and also says that such contracts require the Council’s prior authorisation.
This means that general contract law cannot by itself complete the legal regime governing the gestational surrogacy contract. Firstly, because this is not a contract that depends solely on the contracting parties’ will, given that it is subject to administrative authorisation [see Article 8(3) and (4), LPMA]; and secondly, because the contract concerns not only a form of procreation that was previously not permitted, but also one that is not typified in the law. Nor does the parties’ exercise of their autonomy suffice on its own to conclude a contract, inasmuch as one of the questions which the LPMA leaves open lies precisely in the definition of the boundaries within which that autonomy can be exercised.
In other words, paragraphs (4), (10) and (11) of Article 8, LPMA, do not offer either a sufficiently dense legal standard against which to establish predictable parameters for the actions of private individuals who are interested in entering into gestational surrogacy contracts, or material criteria that are precise and controllable enough for the CNPMA to exercise its supervisory and prior-authorisation competences. What does clearly result from those precepts is that gestational surrogacy contracts are subject to prior administrative authorisation – this is why it is only admissible for them to be entered into on an exceptional basis, as laid down in Article 8(2) – and that formal administrative powers are given to that Council: the power to supervise the content of the contract, and the competence to authorise it in advance. The definition of positive and negative limits on the parties’ autonomy – i.e. the normative determination of the conditions whose fulfilment is indispensable if prior authorisation for the gestational surrogacy contracts the interested parties want to enter into is to be granted, which is in turn a requisite that is indispensable to those contracts’ validity – can thus be said to result from the exercise of those powers (albeit in conjunction with the rules derived from the government’s regulatory intervention, as referred to in Article 3 of Law no. 25/2016).
53. Gestational surrogacy also touches on the interested parties’ fundamental rights (see § 51 above). In the case of the surrogate, this is immediately clear from the way in which the whole process unfurls in concrete terms, given that that process is only possible if it is based on the surrogate’s willingness for the beneficiaries to have a child who will be born from her womb. However, the actual possibility of being a surrogate within the predefined legal framework is also an important aspect of her right to the development of her personality, which she dynamically puts into practice by exercising her private autonomy; and the latter aspect is also present on the beneficiaries’ side. This means that some essential aspects of the positive and negative delimitation of the interested parties’ private autonomy with regard to gestational surrogacy – that which must be stipulated and that which cannot be stipulated in the applicable contract, and especially the extent to which the conditions that are indispensable if the contract is to secure prior authorisation are fulfilled – must obligatorily be laid down in a Law of the Assembly of the Republic [see Article 165(1)(b), CRP].
As we have said in the previous sections, although paragraphs (4), (10) and (11) of Article 8, LPMA, provide for positive and negative limits on the parties’ autonomy in the gestational surrogacy contract, instead of concretely laying down those limits they only describe them in a very general, abstract way. That concrete implementation, which is indispensable if one is to know and understand the conditions under which the CNPMA will grant the prior authorisation, will only occur as a result of the exercise of powers attributed to that Council, albeit possibly in conjunction with the regulatory rules established by the government under Article 3 of Law no. 25/2016; and the concrete implementation of those limits, inasmuch as they are subjected to the conditions laid down for the prior authorisation of the contract, necessarily amount to a compression of the parties’ autonomy.
Where the surrogate is concerned, the limits in question will tend to govern the concrete way in which she can exercise the right to the development of her personality within the scope of the gestational surrogacy process in which she has decided to take part, and may potentially interfere in the scope of the protection of other fundamental rights. In particular, in the light of Article 8(11), what is at stake is the setting of limits on the admissible restrictions on ways in which the surrogate can behave – an area that can clearly entail restrictions on fundamental rights. Some of the matters – which must obligatorily be addressed in the model contract – that are listed in Article 3(3) of Regulatory Decree no. 6/2017 provide a revealing example of this:
– The choice of the obstetrician who will accompany the pregnancy, the type of childbirth, and the place where the latter will occur [subpara. (b)].
– Compliance with the medical guidance given by the obstetrician accompanying the pregnancy and undergoing examinations and therapeutic acts, as well as the possibility of refusing to subject herself to certain diagnostic exams [subparas. (a) and (d)].
– The possibility of travelling by certain forms of transport or outside the country during the third trimester of the gestation [subpara. (d)]
– Provisions to be observed with regard to health-related complications in the gestation, either at the foetal level or at that of the surrogate herself, and in the event of an abortion [subparas. (g) and (h)].
– The number of attempts at pregnancy [subpara. (i)].
– Health insurance policies linked to the object of the contract [subpara. (l)]
– The way in which disputes will be resolved [subpara. (m)].
The truth is that the LPMA is silent about both the abovementioned limits and matters like the ones listed here, all of which are of undeniable relevance to the fundamental interests in question. Due to its indeterminate nature, the law does not offer a legal standard that is suitable for establishing rules of conduct for the beneficiaries and the gestational surrogate, or for setting guidelines which are sufficiently dense in order for the CNPMA to define the criteria for granting the prior authorisation for the gestational contract. That indeterminate nature not only makes the criteria which the Council has to determine legally unpredictable, but also means that judicial control of the legality of those criteria in a way that is appropriate to the importance of the matter at hand is not possible.
Given that these are rules which restrict the exercise of rights, freedoms and guarantees by both the surrogate and the beneficiaries – and consequently a matter on which only Parliament can legislate, and then only in the form of a Law, ex vi Articles 18(2) and 165(1)(b), CRP – this indeterminate nature is incompatible with the requirement for the precision or determinability of laws, as derived from the principle of a democratic state based on the rule of law enshrined in Article 2, CRP. The remarks which the Court made in Ruling no. 285/92 and reiterated in subsequent cases are valid here:
The “question of the relevance of the principle that laws must be precise or determinable is closely linked to the principle whereby certain law-making is reserved to Parliament, and mainly has to do with the question of whether, in a concrete case, the scope of the normative provisions established by law fulfils the requisites that are deemed indispensable in order to assert that its content does not give the Administration, which is in charge of the implementation, a decision-making margin that encompasses the essential elements of the legal provision itself, in which case the order of the distribution of competences between the legislator and the enforcer of the law would be subverted. (…)
It is not hard to acknowledge that the principle of the determinability or precision of laws does not constitute a constitutional parameter per se – i.e. one that is not linked to the nature of the matters in question or to a conjugation with other constitutional principles that are relevant to the case. While it is thus true that the Portuguese constitutional legal system does not include a general prohibition on issuing laws which contain indeterminate concepts, it is nonetheless true that there are domains in which the Constitution expressly requires that laws cannot be indeterminate. Examples of this include the requirements for typicity in penal matters [laid down in Article 29(1), CRP] and in the fiscal field (see Article 106, CRP), or as an offspring of the principle of legality (nulla poena sine lege), or that taxes must be legally typified.
Given the special regime to which restrictions on rights, freedoms and guarantees are subject [Article 18, CRP, and especially paragraph (3), taken in conjunction with the principle of legal certainty inherent in a democratic state based on the rule of law (Article 2, CRP)], we must acknowledge that, in accordance with a criterion or principle of proportionality to which the aforesaid restrictions must be subject inasmuch as what is at stake here is the guarantee enshrined in Article 53, CRP, the degree to which the law must be precise or determinable has to be such that it: provides whoever is targeted by the normative provisions with precise, exact and timely knowledge of the legal criteria which the Administration has to employ, thereby reducing the excessive risks to which those parties would be subjected by norms that were indeterminate about the preconditions and assumptions on which the Administration must base its actions; provides the Administration with rules of conduct garnished with criteria which, without strangling its freedom of choice, safeguard the ‘essential core’ of the guarantee of the rights and interests of private individuals to which the Constitution affords its protection when the Administration defines the normative scope of a precept (Tatbestand); and finally, enables the courts to effectively control the suitability of the Administration’s concrete actions in the light of the content of the legal norm which formed their basis and origin.”
In other words, and as the Court summed it up in Ruling no. 474/2013:
“The state is required to include clear, precise and safe decision-making criteria in the law, in such a way as to: give the Administration a concrete space in which to issue binding decisions – but not one in which it can simply follow its primary inclination – by identifying a core that is important to the legitimation of the intervention which restricts the affected right, freedom or guarantee; and enable the courts to control the (possible) absence of management criteria and the proportionality of their consequences in the face of the profound injury to [that] right (…).”
Now, it is that precision or determinability that is lacking in Article 8(4), (10) and (11), LPMA, which concerns the limits that are to be placed on the autonomy of the parties to the gestational surrogacy contract, and the limits on the admissible restrictions which that contract can impose on the surrogate’s behaviour. Those precepts are thus unconstitutional, because they are in breach of the principle that the law must be determinable, which is a corollary of the principle of a democratic state based on the rule of law, and of the constitutional rule that legislation on certain matters can only be passed by Parliament and in the form of a law, which are derived from a conjugation of the provisions of Articles 2, 18(2) and 165(1)(b), CRP, seen here with reference to both the surrogate’s and the beneficiaries’ rights to the development of their personality and to form a family, as enshrined in Articles 26(1) and 36(1), CRP.
The declaration with generally binding force of the unconstitutionality of the norms contained in the precepts which give the CNPMA the formal administrative powers needed to legitimate gestational surrogacy contracts, particularly by authorising them as required by law, necessarily prejudices the possibility of entering into gestational surrogacy transactions in the Portuguese legal order until such time as the parliamentary legislator establishes a constitutionally appropriate regime for them. Because of this, this finding of unconstitutionality extends to the norms contained in Article 8(2) and (3), LPMA, with regard to the part in which they permit the conclusion of gestational surrogacy transactions on an exceptional basis and subject to prior authorisation. The fact is that inasmuch as it is only possible to enter into such transactions on an exceptional basis and with prior authorisation [see the aforementioned Article 8(2) and (3), LPMA], both the absence of an entity with the competence to authorise them and the absence of a definition by law of criteria for that authorisation mean they are not permissible.
For reasons of clarity and legal certainty apart from anything else, it is thus now justifiable for us to already set out the corollaries of that declaration of unconstitutionality. In truth, more than a paradox, it would be an unacceptable contradiction in value if one were to admit the continued possibility of entering into gestational surrogacy transactions in the Portuguese legal order under some other regime that is even less clearly determined at the level of a Law of the Assembly of the Republic than the one we have just criticised.
C. The right to know one’s genetic origins and the surrogate’s identity
C.1. Meaning and scope of the review request
54. A second set of questions which the petitioners raise in their request concerns the right of persons who are born as a consequence of MAP processes that use donations of gametes or embryos to know the identity of the donor or donors, and in the case of persons born by means of gestational surrogacy, to know the identity of the respective surrogate. In this respect, they have asked for a review of the constitutionality of the norms contained in Article 15(1) and (4), LPMA, taken in conjunction with Articles 10(1) and (2) (Donation of sperm, oocytes and embryos) and 19(1) (Insemination with donor semen), LPMA, inasmuch as these do not allow a person who is the fruit of heterologous MAP techniques or is born with recourse to gestational surrogacy – which presupposes the use of those techniques (see § 8 above) – to know his/her genetic ancestry and/or the identity of the woman who gave birth to him/her.
Paragraphs (1) and (5) of Article 15, LPMA, were modified by Law no. 25/2016 with a view to the inclusion of gestational-surrogacy-related situations that had previously not been permitted. The current text of this precept reads as follows
“Article 15.
Confidentiality
1 – All those who become aware in any way of the use of MAP techniques, including in gestational surrogacy situations, or of the identity of any of the participants in the respective processes, are obliged to keep the identity of the participants confidential and maintain the confidentiality of the MAP act itself.
2 – Persons who are born as a consequence of MAP processes using donations of gametes or embryos may obtain information of a genetic nature that concerns them, excluding the donor’s identity, from the competent health services.
3 – Without prejudice to the provisions of the previous paragraph, the persons referred to therein may obtain information that may exist about any legal impediment to a planned marriage from the National Council for Medically Assisted Procreation, while the confidentiality regarding the donor’s identity shall be maintained, except if the latter expressly permits otherwise.
4 – Without prejudice to the provisions of the previous paragraphs, information may also be obtained about the donor’s identity for weighty reasons recognised in a court decision.
5 – In no case whatsoever, including gestational surrogacy situations, may the birth certificate contain any indication that the child was born following the application of MAP techniques.”
55. As was mentioned above, the petitioners only argue for the unconstitutionality of paragraphs (1) and (4) of Article 15; in particular, they do not ask for a review of the constitutionality of paragraphs (2) (which expressly excludes the donor’s identity details), and (3) (which, again expressly, requires that the donor’s identity be kept confidential, unless he/she expressly permits otherwise). We must thus try to understand what legal regime would result from any declaration of unconstitutionality with regard to Article 15(1) and (4), LPMA, as requested by the petitioners.
First of all, the confidentiality obligation which the Law now imposes on “all those who become aware in any way of the use of MAP techniques, including in gestational surrogacy situations, or of the identity of any of the participants in the respective processes”, with regard to both the identity of the participants and the MAP act itself, would cease to exist. There would then be, if not a right to tell the truth, at least an ability on the part of any person to tell another about the latter’s origins and the identity of the donors, regardless of the way in which the informant became aware of those facts. We might then ask whether, in the event that the interested party had not asked for the information, that attitude would not represent a violation of the reserved nature of private life, not just in terms of the various individuals involved in the MAP process, but also and especially of the person born as a result of the heterologous MAP or gestational surrogacy, whose right to the development of his/her personality must entail a right not to know the facts that underlie his/her birth, if he/she doesn’t want to.
However, this does not seem to be the intention of the petitioners, from whose arguments it seems fair to conclude that the unconstitutionality they claim to exist arises from the combination of two aspects of Article 15(1) and (4): the imposition of an obligation of secrecy on everyone involved that would prevent them from confirming the existence of the MAP act itself (and obviously also from revealing the donor’s identities), even if they are asked about it by the interested party; and the need for there to be weighty reasons recognised by means of a judicial decision in order for the relevant information to be provided to the interested party.
Article 15(1) thus subjects knowledge of the origin of persons who are born as a result of heterologous MAP or gestational surrogacy to the will of their parents. This solution is naturally problematic, given that the latter are precisely the holders of fundamental rights which potentially conflict with the right to personal identity and to know one’s genetic origins. Article 15(4) requires there to be a justification for the desire to know this information, and leaves the assessment of whether that justification is relevant to the discretion of the court. In the petitioners’ opinion, it also seems to preclude access to the identity of the gestational surrogate, thereby, and unlike what happens in relation to donors, imposing a rule of absolute anonymity.
As such, any declaration of unconstitutionality would necessarily result in the elimination of the obligation to maintain absolute confidentiality in relation to persons who were born as a consequence of MAP processes laid down in Article 15(1), including in gestational surrogacy situations; it would thus also end the absolute impossibility on the part of the person who was born with recourse to gestational surrogacy of gaining access to the gestational surrogate’s identity; and it would consequently do away with the need to present “weighty reasons” as to why the interested party should be able to access donor identities that is currently provided for in Article 15(4).
If this were to happen, it would be useful if the legislator were to intervene in such a way as to not only eliminate the systemic contradictions that could result from the combination of the continued force of Article 15(2) and (3) on the one hand and the effects of the declaration of unconstitutionality on the other, but also to regulate the terms under which interested parties could access the information they need to know their origins.
C.2. The current regime governing access to knowledge about one’s origins
56. In addition to what we have already said, it is imperative that we gain sufficient understanding of the legal regime defined in the norms contained in Article 15, LPMA. In reality, the obligation to maintain absolute confidentiality laid down in paragraph (1) is then the object of derogation in the following paragraphs, with regard to certain entities and certain information, with the interested party recognised as being entitled to access to the latter.
Under paragraph (2), a person who is born following the use of heterologous MAP techniques –necessarily the case of someone who was born in the wake of the conclusion of a gestational surrogacy contract (see § 8 above) – can thus obtain information of a genetic nature – in principle, this excludes information linked to the gestational surrogate – that concerns him/her, from the health services. Similarly, paragraph (3) allows such individuals to verify the absence of any legal impediment to a planned marriage by consulting the CNPMA. In both these cases, the Law only excludes the donor’s identity, unless “the latter expressly permits it” [(para. (3)] or, despite the absence of that consent, the interested party shows that there are “weighty reasons recognised in a court sentence” for his/her wish [(para. (4)].
Within the existing legislative framework, persons whose birth was the result of heterologous procreation are thus entitled to know the whole of their clinical history and relevant genetic information. For example, they are not prevented from resorting to preventive medicine or dependent on a court order for that purpose. As we have seen, information about genetic history and the existence of consanguinity with a future spouse can be obtained by consulting the competent services and is not dependent on any court proceedings.
On the other hand, it is important to recall that in any case, the Law prohibits the conception of a child using gametes from the woman who then undertakes the gestation [see Article 8(3), LPMA]. This means that the surrogate can never be a donor of the child’s genetic material, and as such, the question of knowing her identity cannot fall within the scope of the right to know one’s genetic origins (albeit on the other hand, it may be covered by other rights – namely the personal history aspect of the right to one’s personal identity – see below).
57. It is within this overall legal and interpretative framework that we must now analyse the question of unconstitutionality posed by the petitioners: that of whether the current legislative solution is incompatible with the principle of the dignity of the human person, and with the fundamental rights to identity and the development of their personality pertaining to persons born with recourse to heterologous MAP techniques, including in situations involving gestational surrogacy.
It should be noted that, unlike what happens in other contexts in which these rights are invoked – examples include situations in which filiation is not established (one case of this is paternity investigation suits) – what is at stake here is access to information data which concerns the identity of the interested party him/herself and which the state already has. The state is therefore the immediate addressee of that request, and not merely the guarantor of a claim whose fulfilment lies primarily in the hands of another private individual.
C.3. The conflicting fundamental interests
58. Although its immediate target is the state, the desire of someone who was born following the use of heterologous MAP techniques to know their genetic origins (and more broadly speaking, the circumstances in which their conception, gestation and birth took place) can conflict with both the interest in maintaining the peace and tranquillity of the family to which that person currently belongs, and the desire of whoever donated genetic material or was the gestational surrogate to remain anonymous.
The solutions that have been found in this context are very diverse. The many different legal regimes include ones that ensure total donor anonymity, and others that require donor identities to be registered, with the possibility of their being revealed to the individuals born with recourse to the donated gametes or embryos, at their request and once they have come of age. There are also valid arguments underlying the various different interests in play.
On the one hand, some proponents invoke the parent’s interest in saying nothing. For a long time, the prevailing idea was that of the need to protect the privacy of personal and family life. Besides this, it is suggested that anonymity encourages the donation of gametes and is a guarantee for the parents that it will be impossible for the donor to claim any rights with regard to their biological child. What is more, revealing gamete donors’ identities could lead to the appearance of paternal and maternal relationships that are devoid of any real project for actually assuming those relationships – a situation which should be avoided. Finally, it is also argued that the donor anonymity rule is an essential factor in ensuring the existence of donors and thus the very viability of heterologous MAP.
On the other hand, there are those who defend a person’s right to know his/her history and identity, with his/her biological and genetic origins seen as an important part of the latter. As social views change and the use of infertility treatments is becoming more widely accepted, the parents’ interest in keeping the use of MAP a secret is now starting to give way to a greater attention to the rights of persons who were born following the use of MAP techniques. One example of this is the evolution in various legal orders towards a progressive openness to protection of the right to know one’s origins, and even the complete abandonment of the donor anonymity rule.
Following the methodology that best suits both the nature of the problems before us and the control parameters mobilised by the petitioners (see § 6 above), it is now useful to widen our perspective and look at International and Comparative Law, and bearing the resulting information in mind, to analyse how the problem raised by Article 15, LPMA, has been addressed.
C.3.1. Donor anonymity and the right to know one’s genetic origins in International Law
59. We should begin by emphasising the relevance of the provisions of the Convention on the Rights of the Child – the first treaty to contain an explicit provision regarding the right, not just of adults, but of everyone – even minors – to know their origins. Particularly important on this level is Article 7(1), which lays down a subjective right to know one’s biological ancestry: “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents” (italics added). Paragraph (2) adds that “States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments”; while Article 8(1) enshrines an obligation on the part of the State to “respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference” (italics added). Paragraph (2) of this Article in turn adds that “Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity”.
This Article 8 is both quite innovative and significant to the present case. It was the result of a draft submitted by Argentina, which wanted to enshrine a normative provision that would make it possible to underpin the requests for investigations into the real identity of children of persons who disappeared during the 1970s and ’80’s. The reference in the norm to “family relations” is also usually interpreted in a broad sense that includes biological or genetic origins. However, we must bear in mind that this provision does not rigorously define the concept of identity, instead limiting itself to giving non-definitive examples of elements that go to make it up – elements that would in any case be derived from Article 7 of the Convention. The full densification of the term must therefore be referred to the levels of legal dogma and case law.
60. On the question of donor anonymity, the provisions of Article 8(1), ECoHR, are also especially important in that the ECHR has held the right to know one’s genetic origins to be an integral and essential element of the right to respect for private and family life. However, it has not considered it to be an absolute right, accepting that it may have to be adjusted in such a way as to make it compatible with other fundamental interests.
Worthy of immediate note in this respect is the Court’s Judgment of 7 July 1989 in Gaskin v. United Kingdom (Application no. 10454/83). The ECHR decided that the applicant, to whom the British authorities had denied access to some of the records regarding the period during which he was in state care as a minor ward of the state, did effectively have the right of access to all the records in question. The Court recalled that although the primary goal of Article 8 is to protect individuals against arbitrary interference by public authorities, it can additionally imply positive obligations inherent in an effective respect for family life. As such, it said that that right implies that each person be able to establish the details of his/her identity as a human being and should not in principle be prevented by the authorities from obtaining basic information without a valid reason. The Court concluded that citizens possess a vital interest, which is protected by the Convention, in receiving all the information they need in order to know about and understand their childhood and development.
Also relevant is the Judgment of 7 February 2002 in Mikulic v. Croatia (Application no. 53176/99), in which the applicant alleged that Article 8, ECoHR, had been breached by the length of time the process of determining her father’s identity had taken, given that the Croatian judicial system had no mechanism for obliging the alleged father to undergo compulsory DNA testing. The ECHR recognised that the interested party had been kept in a state of prolonged uncertainty due to the inefficiency of the Croatian courts, and that this situation was in violation of the right to receive necessary information about the fundamental aspects of her personal identity. Despite accepting that it was admissible for the Croatian system to prevent the performance of any medical tests, including DNA tests, in order to protect relevant third-party interests, the Court nonetheless held that the absence of an appropriate and definitive solution to the applicant’s case entailed a violation of the “right to personal identity” dimension of Article 8, ECoHR.
ECHR Judgment of 13 February 2003 in Odièvre v. France (Application no. 42326/98) concerned the compatibility between the ECoHR and the French legal regime, which protected the possibility of a mother giving birth anonymously. Following a line of argument that may also be relevant to an assessment of the relative weight of the constitutional rights at stake in the present case, the ECHR then considered that the French legislation sought to establish a balance between, and afford sufficient protection to, the various conflicting interests. On the one hand, the right to obtain information about one’s origins in order to be able to construct one’s personal history, with knowledge of the choices made by biological and adoptive parents and the various family and genetic links that exist; on the other, the public interests in protecting both mother and child during pregnancy and childbirth, and in fighting both abortion – especially clandestine abortion – and child abandonment, which the French State listed as the underlying reasons for the regime in question. In a decision that was the object of numerous comments and dissenting opinions, the ECHR concluded that although the French legislation was unusual in Comparative Law terms, it did not exceed the margin of appreciation that must be recognised in relation to extremely complex and sensitive matters, such as the right to know one’s origins.
In the Judgment of 13 July 2006 handed down in Jäggi v. Switzerland (Application no. 58757/00), the ECHR clarified that the broad discretion enjoyed by states does not depend solely on the opposing fundamental rights in a concrete situation, but also, for each one of those rights, on the specific nature of the claims at stake. Where the right to identity is concerned, the Court reiterated that this right forms an integral part of the concept of private life and necessarily includes the right to know one’s own ancestry. In casu, the Court admitted that the need to protect third parties may imply the exclusion of the possibility of undertaking certain procedures, such as DNA tests to establish paternity, but considered that there must be a fair balance, which must be determined by weighing up the competing interests.
This line of thought has also prevailed with regard to the existence of time limits for bringing paternity recognition suits. The ECHR has considered that the existence of a final deadline does not in itself violate the Convention, and that it is important to determine whether a time limit’s nature, length and characteristics result in a fair balance between the investigating party’s interest in the clarification of an important aspect of his/her personal identity, the interest of the investigated party and his closest family in being protected from suits regarding facts pertaining to his personal life that occurred long ago, and the public interest in the stability of legal relationships. The Court’s reasoning has emphasised the idea that the right to respect for private and family life does not pertain solely to the person who wants to know who their parents are and establish the respective legal tie, but also protects the investigated parties and their families, whose protection also warrants consideration; and that it is important to achieve a degree of harmony between the opposing interests. This idea was present in the ECHR’s Judgments of 6 July 2010 in Backlund v. Finland (Application no. 36498/05) and Gronmark v. Finland (Application no. 17038/04), and of 20 December 2007 in Phinikaridou v. Cyprus (Application no. 23890/02), all of which involved the existence of time limits for lodging paternity recognition suits.
C.3.2. Donor anonymity and the right to know one’s genetic origins in Comparative Law
61. The question of donor anonymity and the right of children born with recourse to MAP techniques – particularly using donated gametes or gestational surrogacy – to know the identity of their genetic progenitors or the surrogate is a controversial topic and one that is hotly debated in Comparative Law. It is well known that the concrete legal solutions in this respect have evolved over the last decade.
As such, the legal provisions on this matter differ significantly from one legal order to another, sometimes to the point of being opposites, even within the framework of groups of countries with strong similarities and a set of shared constitutional-law values, such as the Member States of the European Union. While various countries still retain the donor anonymity rule, there is nonetheless an undeniable trend towards guaranteeing the right to know one’s own origins, creating important exceptions to the anonymous status of donors or abolishing it completely.
Indeed, the Resolution of the European Parliament of 16 March 1989 on artificial insemination ‘in vivo’ and ‘in vitro’, which is mentioned by the petitioners, already pointed in this direction [see §10 indents (3) and (4): although that type of insemination is considered undesirable, it is felt that, in the event it is accepted by a Member State, it will be necessary to respect the following requisites among others: (i) “consent of duly informed couples and evidence of their fitness, with application by analogy of the provisions of the respective adoption laws, including those regarding donor anonymity”; and (ii) “ban on disavowal of paternity in the event of artificial insemination by a donor” – see Official Journal of the European Communities no. C 96/171 of 17 April 1989).
62. In Germany, the right to know one’s own origins has been recognised since 1989, following the case law of the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), which has called it a fundamental right derived from the dignity of the human person and the personality rights protected by the German Constitution (Grundgesetz, the “Basic Law”). In its decision of 18 January 1989, the BVerfG said:
“As an individualising characteristic, ancestry [Abstammung] belongs to personality, and regardless of the extent of scientific results, knowledge of [one’s] origins enables each person to obtain connecting elements that are important to the understanding and development of their own individuality. This is why the [general] right of personality [from Article 2(1) of the Grundgesetz, taken in conjunction with Article 1(1)] also includes the right to know one’s ancestry. (…) However, Article 2(1) taken in conjunction with Article 1(1) of the Grundgesetz does not grant any right to acquire knowledge (Recht auf Verschaffung von Kenntnissen) about one’s own ancestry, and its scope is limited to a defence against a refusal to grant access to information that already exists” [BVerfG 79, 256 (269); in the same sense, see BVerfG 90, 263 (270 f), 96, 56 (63), and finally, 141, 186 (204)].
The argument in favour of a right to know one’s own ancestry results first and foremost from the constitutional duty to protect individuals from the refusal, within the scope of legal relations between interested parties, to provide available information about that ancestry, in that it is not usually the state – bounded by fundamental rights – which prevents the interested party from accessing existing information about his/her ancestry, but rather other private individuals who refuse to collaborate in clarifying the situation. The state is called on to defend the interested party because the latter can only obtain the information he/she wants with its help. To this end, it may be necessary to create a procedure whereby the question can be clarified [in this sense, see BVerfG 117, 202 (227), and 141, 186 (204)].
On the legislative level, we should point to the Law on the Right to Know One’s Ancestry in the Event of the Use of Donor Semen (Gesetz zur Regelung des Rechts auf Kenntnis der Abstammung bei heterologer Verwendung von Samen) of 17 July 2017. Article 1 approved the Law governing the Registration of Semen Donors and Access to Information about the Donor of Semen Used (Gesetz zur Errichtung eines Samenspenderregisters und zur Regelung der Auskunfterteilung über den Spender nach heterologer Verwendung von Samen – Samenspenderregistergesetz – SaRegG). The first sentence of §1(2), SaRegG, says that the purpose of donor registration is to ensure that persons conceived following the use of a MAP technique using semen from a third-party donor enjoy the right to know their ancestry. §10 of the same Law governs the preconditions and procedure for access to the donor database by persons who presume they were conceived in this way.
63. In Spain, the current rule is one of anonymity. Law 14/2006 of 26 May 2006 provides for the confidentiality of donor-related data [see Article 5(5)]. Children born as a result of heterologous procreation are entitled to receive general information about their donors, but this does not include their identity, which can only be disclosed in extraordinary cases that entail danger to the child’s life or health.
On the case-law level, when the Constitutional Court of Spain assessed the constitutional conformity of the donor anonymity rule included in the previous Law (Law 35/1988 of 22 November 1988), it took the view that citizens do not enjoy an unrestricted right to investigate and know who their biological progenitors are, whatever the eventuality and without taking account of reasons that would justify not revealing that information. In Sentence 116/1999 of 17 June 1999, the Court’s Plenary said:
“First of all, we must note that the donor anonymity which the Law seeks to preserve does not suppose an absolute impossibility to determine donors’ identity, inasmuch as the same precept says that, exceptionally, ‘in extraordinary circumstances entailing a proven danger to the child’s life, or when doing so is in accordance with the laws governing criminal procedure, the donor’s identity can be revealed whenever that is indispensable in order to avoid the danger or attain the proposed legal end’. As such, the aforementioned legal precept gives children born by means of artificial reproductive techniques, or their legal representatives, the right to obtain general information about their donors, excluding access to their identity, thereby providing them with knowledge about the genetic and other factors or elements pertaining to their progenitor. It is thus not possible to say that, by protecting donor identities, the legal rules give rise to prejudicial consequences for the children with a scope is great enough to say that they result in a lack of protection for those children.
At the same time, the limits and precautions established by the legislator in this respect are not lacking in rational basis, clearly responding to the need to reconcile obtaining gametes and pre-embryos that are capable of being transferred to the mother’s uterus and are indispensable to the implementation of these assisted reproduction techniques (directed – we should once again remind ourselves – at therapeutic goals and fighting human sterility – Article 1.2 of the Law) on the one hand, with the donors’ right to privacy on the other, thereby helping favour access to these artificial human reproduction techniques, as long as they fall within a medical context in which, for a variety of reasons – from cultural and ethical ones to those derived from the technological newness of these means of fertilisation itself – it can be especially difficult to obtain the genetic material needed to put them into practice.”
64. France maintains a model that safeguards the complete anonymity of both donors and surrogates. The fact is that from a historical point of view, this is a country where a person’s right to know their origins – namely their genetic origins – has never prevailed in the legal regime governing this type of issue. Indeed, French Law makes a distinction between maternity and maternal progeniture, and it is even possible for a woman to give birth in secret, without disclosing her identity (known as “giving birth under the name X”).
Following heavy criticism from the UN Committee on the Rights of the Child among others, French legislation was changed with the entry into force of Law no. 2002-93 of 22 January 2003, which made it possible to lift the anonymity of biological parents in certain circumstances, but only in the case of adoptees and wards of the state. The consultation of certain non-identifying data through state bodies is also permitted. In 2003, the ECHR considered the French anonymity rule with regard to adoption in Odièvre v. France, and found that the French legal solution was compatible with the provisions of Article 8, ECoHR (right to respect for private and family life).
The anonymity solution was also expressly adopted in the specific case of oocyte and sperm donors. Article L1244-7 of the Public Health Code (CSP) provides precisely for an obligation to inform donors about the “principles of anonymity and [that the donation must be] free of charge”.
65. In the United Kingdom a different model is in place, and has also been the object of substantial evolution over the last twenty years. A person’s right to know their origins has been enshrined and protected in general terms in the British legal system for several years. However, the public authorities are required to inform everyone involved of the intention to disclose the information, and to weigh up the rights of applicants seeking access to data about their origins against those of the other interested parties, whose fundamental rights must be taken into consideration.
In the specific case of the right to know the identity of one’s donors, the changes that have been made in the UK legal order over the last few decades have been more significant. When the United Kingdom ratified the Convention on the Rights of the Child, the act included the reservation that “parents” should only be taken to mean the persons defined as such in UK legislation, which does not include the biological parents of adoptees, or donors, in that category. Having said this, the anonymity option was widely debated, especially after the passage of the 1998 Human Rights Act, and underwent a number of changes that moved it towards greater openness. In the end, it was completely abandoned in 2005. The current version of the 2008 Human Fertilisation and Embryology Act makes it compulsory to record information about donor identities, and gives persons who were born with recourse to donated gametes the right to ask the authorities for that information once they have reached the age of sixteen.
66. Switzerland, the Netherlands and the majority of the Scandinavian countries (namely Sweden, Norway, Iceland and Finland) now have legal provisions that strongly protect the right to know one’s genetic origins, and the donor anonymity rule has been totally abolished. These countries are examples of a worldwide trend towards abandoning the anonymity rule and giving persons born by means of MAP the possibility to know the identity of the donors of the gametes from which they originated, once they have attained a sufficient degree of maturity.
In 1984, Sweden became the first country to bring in legislation allowing people to know their donors’ identities 1984. This principle of openness was naturally extended to cover oocyte donors when that practice became legal in 2003.
In Switzerland, Article 119(2) of the Federal Constitution of the Swiss Confederation (in French: CFCS) includes concrete provisions on medically assisted procreation, one of which enshrines everyone’s right to gain access to data regarding their ancestry [subpara. (g): “Everyone shall have access to the data regarding their ancestry”]. In the light of both the inequality which the regime created with regard to adopted children and the obligations which Articles 7 and 8 of the Convention on the Rights of the Child placed on the Swiss State, at the beginning of the new century both federal case law (see ATF 128 I 63) and the Swiss legislator recognised the right to know one’s origins as an absolute personal right, the scope of which must be as broad as possible.
The anonymity rule was also progressively removed in Norway, from 2003 onwards. The right to know one’s genetic origins has been fully protected since 2005.
Since 1996 (see Law no. 55-1996), Iceland has had a dual system that allows both anonymous gamete donations and donations by people who give prior authorisation for the disclosure of their personal data. Finland had a similar system for a number of years, but then chose to abolish the anonymity rule in 2006, so interested parties can now know the identity of their sperm or oocyte donors, once they have come of age.
In the Netherlands, following a debate that lasted for more than a decade, anonymous donations are not allowed. 2002 saw the passage of a law on the right to information about gamete donors which repealed the earlier mixed solution.
C.3.3. The debate about Article 15, LPMA
C.3.3.1. Portuguese legal doctrine
67. Portuguese legal scholars have been debating the issue of donor anonymity and the right to know one’s genetic origins for years.
As early as 1991, Oliveira Ascensão argued that, notwithstanding the fact that the then dominant trend in Comparative Law was towards the rule that donors should be anonymous, that pragmatic vision based on social utility clashed with ethical considerations. He said that, whether or not a filiation tie exists, every person should be able to know where they come from, inasmuch as one’s origins are “not just a biological connection: there is a human moment, in the knowledge of each person’s past or antecedents” (see OLIVEIRA ASCENSÃO, “Direito e Bioética” in Revista da Ordem dos Advogados, year 51, July 1991, pp. 429 et seq.). Based on this understanding, he suggested that the rights to moral and physical integrity (Article 25, CRP) and to personal identity (Article 26, CRP) were capable of serving as grounds for the right of any person to know their biological origins, irrespective of whether that knowledge is associated with the legal establishment of filiation or not.
Paulo Otero takes the view that “the right to personal identity involves a right to personal historicity, expressed in each person’s relationship with those who (mediately or immediately) gave rise to them” (see PAULO OTERO Personalidade e Identidade Pessoal e Genética do Ser Humano: um perfil constitucional da bioética, Almedina, 1999, p. 71 et seq.). Otero draws some important conclusions from this right that are directly relevant to the question before us here.
Firstly, he argues that it implies the right of each human being to know the way in which he/she was conceived, and more broadly, the right to know one’s genetic heritage. As such, he supports the idea of the unconstitutionality of any “normative confidentiality system that prevents the interested party from being able to know the way in which he/she was conceived, or his/her genetic heritage”. Similarly, he rejects the existence of any interests or rights on the part of people who intervene in the process – particularly a donor’s right to personal and family privacy – that “might prevent anyone from knowing their origins and genetic heritage”.
Secondly, he says that the right to personal historicity also includes “the concrete right of each human being to know his/her progenitors’ identities” – a fact that implies the unconstitutionality of “any rule [establishing] the anonymity of the donor of genetic material”.
Tiago Duarte highlighted the 1997 addition by the constitutional legislator of a paragraph (3) to Article 26, CRP, making it clear that it is necessary not to obscure a human being’s genetic identity when using any scientific technologies and experiments, MAP techniques included (see TIAGO DUARTE, In Vitro Veritas? A Procriação Medicamente Assistida na Constituição e na Lei, Almedina, Coimbra, 2003). In his opinion, “what the Constitution stopped allowing, if it ever allowed it, is any obstruction [that would prevent] anyone from looking for and knowing those who transmitted their genes to him/her and thereby formed his/her identity. Whether the law deems them parents or mere donors, however much the law may want and reasonably seek to spare them any responsibilities, those persons are part of the history and genetic identity of the one to whom they gave rise one day”. He consequently argues for the unconstitutionality of any legal norm that makes it possible for donors of sperm, oocytes or embryos in heterologous artificial insemination, in vitro fertilisation, embryo transfer or surrogate motherhood processes to be anonymous. In essentially the same sense, Pamplona Corte-Real says that the rule whereby MAP techniques can only be applied subsidiarily, and then only in situations involving infertility, can “warrant (…) a broad interpretation of the right of any artificially procreated individual to his/her personal identity, albeit with the inherent denial of any binding family tie derived from the donation of gametes, which is only significant in medical terms” (see PAMPLONA CORTE-REAL, “Os efeitos familiares e sucessórios da procriação medicamente assistida” in Estudos de Direito da Bioética, Almedina, Coimbra, 2005, pp. 93 et seq., p. 100).
Guilherme de Oliveira doesn’t take a definitive stance, arguing that both solutions (the rule that donors should be anonymous, and the rule that their identities should be known) are “based on the defence of weighty values – respectively the defence of peace within the family, and the defence of truth about people’s biological ancestry. Donor anonymity seems to do a good job of expressing the irrelevance of the donor’s identity and social role when it comes to the fertilisation process; however, hiding the biological truth seems to gainsay (...) the importance of the knowledge possessed by the biological sciences, [as well as] the cult of truth in societies in which the problem of heterologous insemination poses itself” (see GUILHERME DE OLIVEIRA, “Aspectos Jurídicos da Procriação Assistida”, in Temas de Direito da Medicina, 2nd ed., Coimbra Editora, Coimbra, 2005, pp. 5 et seq., p. 18).
68. In an analysis that is directly devoted to the question of the constitutionality of the norms before the Court in the present case, Rafael Vale e Reis argues that Article 15, LPMA, places a material restriction on the right to know one’s genetic origins, offending its essential content for the benefit of the protection of the medical system for fighting human infertility and the reserved status afforded to the privacy of the personal life of donors and their established nuclear families (see RAFAEL VALE E REIS, O Direito ao Conhecimento das Origens Genéticas, Coimbra Editora, Coimbra, 2008). He therefore suggests that the legislator should have adopted precisely the opposite solution, in the name of the protection of the fundamental right to know one’s genetic origins: that of taking the rule that it should be permissible to know one’s donor’s identity as a starting point, and only limiting it when a court recognises that other values (such as protecting established nuclear families or the donor’s mental integrity) should be held to prevail in the concrete case in question. Working on this basis, Vale e Reis expressly considers that where gestational surrogacy using gametes donated by third parties is concerned, the child should as a rule be able to know the identity of the third-party donor who provided his/her genetic material.
Along the same lines, Paula Martinho da Silva and Marta Costa note that the recent evolution in the European legislation on this subject shows that this principle has been in the process of being re-evaluated in the light of the need to defend the interests of the child born by means of MAP techniques, by which they mean that, de iure condendo, the principle of donor anonymity should be mitigated, or even abolished, in favour of legislative options that permit a level of knowledge about one’s genetic origins and even the donor’s identity (see PAULA MARTINHO DA SILVA and MARTA COSTA, A Lei da Procriação Medicamente Assistida Anotada, Coleção PLMJ, Coimbra Editora, Coimbra, 2011).
GOMES Canotilho and VITAL MOREIRA consider that the right to personal identity – which guarantees “that which identifies each person as a singular and irreducible individual” – certainly encompasses a right to personal historicity, seen as a “right to know the identity of one’s progenitors”; however, they express doubts as to whether this right “necessarily implies a right to know one’s progeniture, [inasmuch as such an understanding would pose] difficulties in the case of the traditional adoption regime, and also, more recently, in the cases of heterologous artificial insemination and surrogates” (see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note II on Article 26, p. 462). For their part, although Rui Medeiros and António Cortês acknowledge that Article 15, LPMA, establishes a system of anonymity, they believe that the solution contained in its paragraph (4) – the possibility that the rule of anonymity be set aside by a court when there are “weighty reasons” for doing so – ought to warrant an interpretation in accordance with the fundamental right to know one’s genetic origins, and that it cannot “legitimate interpretations that excessively and unjustifiably restrict the possibility of disclosing the male or female donor’s identity (obviously without any consequences at the level of filiation relationships […])” (see RUI MEDEIROS and ANTÓNIO CORTÊS, in JORGE MIRANDA and RUI MEDEIROS, Constituição…, op. cit., note VIII on Article 26, pp. 610-611).
C.3.3.2 The CNECV’s position
69. The CNECV has formally stated its views on the right to know the identity of gamete donors on several occasions. In Opinion no. 23/CNECV/98, on a draft government bill on MAP, the Council said that in the event that “semen donation [is to be] legalised”, there should be “unequivocal and unrestricted recognition of the right of persons conceived as a result of semen donations to gain access to the donor’s identity” [point 3(c), p. 16]. This position is justified in the report (drawn up by Council Member Joaquim Pinto Machado) attached to the Opinion, as follows:
“It is true that [in the draft bill under analysis] persons born in that way ‘will be able’ to come to know the donor’s identity, but only ‘for weighty reasons recognised by a court decision’ [Art. 12(3)]. However, this provision only opens up a possibility – which even seems to be an exceptional one – whose implementation depends on undefined criteria: is wanting to know who one’s ‘genetic’ progenitor not a weighty reason in its own right?
Knowing one’s progenitors’ identity forms part of one’s personal historicity and thus of one’s own, singular identity, so no one should be denied access to that knowledge; the judicial instance should be responsible for ensuring it, never for assessing its legitimacy.
Indeed, the first of the rights that are recognised in Article 26(1) of the Constitution of the Portuguese Republic is precisely that to ‘personal identity’. This right of every person to know who their progenitors are is recognised in (at least) Austria, Germany, Sweden and Switzerland; and among other children’s rights that must be safeguarded, the preamble to the 1989 Resolution of the European Parliament on in vitro and in vivo fertilisation includes the ‘right to a genetic identity’.
On the other hand, one must take account of the possibility that in the medium or long term, there may be harmful consequences for the couple and/or the person who has been born; only systematic, reliable studies will make it possible to draw conclusions in this respect. Indeed, donor anonymity and the non-disclosure by couples to the children conceived in this way of how that conception occurred is one of the questions about heterologous MAP that are being most widely debated on the international level.
Nor is the argument that recognising this right will lead to an absence of semen donors a valid one. Not just because this is a secondary reason in the light of what is at stake, but also because Swedish experience shows the opposite: after a few years of decline (the regulations date from 1985), the number of donors has risen and their ethical quality is different – i.e. they are authentically ‘donors’ ” (p. 4).
This position was largely reiterated in later interventions by the Council, particularly Opinion no. 44/CNECV/2004:
“10. In the case of MAP using a gamete-donor, the possibility of identifying the donor at the request of the biological child once he/she has legally come of age should be safeguarded as part of the recognition of the right to his/her personal and biological identity. The non-identifiable genetic information about the donor that is relevant to the biological child’s health must remain permanently available, and before the biological child comes of age, his/her legal representatives should be able to ask for it.
11. Knowledge of the identity of the gamete donor cannot imply [the ability] on the part of the biological child to claim any rights in relation to the donor or any duties on the latter’s part in relation to him/herself.”
C.3.3.3. The Constitutional Court’s case law
70. The Constitutional Court has also had occasion to pronounce itself on the donor anonymity rule. In the case that was the object of Ruling no. 101/2009, the constitutionality of the norms contained in Article 15(1) to (4) [of Law no. 32/2006 of 26 July 2006], taken in conjunction with those included in Article 10(1) and (2), was questioned to the extent that they deny persons born with recourse to heterologous procreation the possibility of knowing their medical history. The petitioners argued that, because of the duty of confidentiality which the Law imposes on all the participants in the process, it is not possible for persons who were conceived with recourse to MAP techniques to know that background – a circumstance that puts them in an unequal situation in relation to every other citizen.
In its 2009 Ruling, after looking at the Comparative Law on the subject and the different positions taken by legal scholars, the Court went on to say that:
“From the constitutional-law point of view, there is tension between different fundamental rights. On the one hand, the fundamental right of persons who are born as a result of MAP to personal identity, from which there appears to arise a right to know one’s genetic ancestry [Articles 26(1) and (3) of the Constitution]; on the other, the right to form a family and the right to private and family life [respectively provided for in Articles 36(1) and 26(1) of the Constitution].
The question must be posed in these terms, given that the possibility of knowing the identity of the donors of gametes and/or embryos does not imply the recognition of any legal tie of a filial nature. This is expressly derived from the provisions of Article 10(2), which reads as follows: ‘Gamete donors may not be held to be progenitors of the child who is to be born’. (…)
This same principle was affirmed by the Constitutional Court [that of a balanced solution which takes account of other interests or values which conflict with the right to know one’s genetic origins] when it pronounced itself on the right to know the identity of one’s biological mother and father, as one aspect of the right to personal identity, in a case that assessed the constitutionality of the limitation of two years after attaining adulthood on bringing bring a judicial action to discover the identity of one’s parents. In this respect, in Ruling no. 23/06 the Court noted that the aspect of the right to personal identity which concerns a person’s historicity implies that there must be legal means for demonstrating biological bonds, but accepted that ‘values other than unlimited acceptance of the right to determine the biological reality of one’s filiation (...) can intervene when one weighs up the interests at stake, in a way that compresses the extent to which the biological truth can be revealed’. (…)
At this point it is necessary to remind ourselves that Article 15 of Law no. 32/2006 does not lay down a definitive rule on donor anonymity, but only a prima facie one that allows exceptions for which express provision is made. In reality, although the people who intervene in the procedure are subject to a duty of secrecy, persons who are born in the wake of the use of MAP techniques that resort to the donation of gametes or embryos can ask the competent health services to provide them with the information of a genetic nature that concerns them [para. (2)], together with information on the existence of any legal impediment applicable to a planned marriage [para. (3)]; in addition to which they can also obtain information about the identity of gamete donors when weighty reasons for doing so are recognised by a court [para. (4)].
The question is thus not whether a legal regime that imposed total donor anonymity would be constitutional, but rather whether it is constitutional to establish donor anonymity as a rule and the possibility of knowing donors’ identity as an exception to it.
As such, [what is at stake is not the actual] existence of a right to know one’s genetic origins [but only] the relative weight that such a right warrants and the importance that is attached to it by the law, as part of the regime which the latter created in concrete terms” (italics added).
The Court then went on to analyse the legal solution in terms of the balance or practical harmonisation between the different rights in play here.
It began by analysing the right to personal identity:
“(…) personal identity is a concept that refers to the person who constructs him/herself over a lifetime in the light of the relationships he/she establishes, while biological bonds are just one aspect of that reality; and so each individual’s personal history is also the story of the relationships he/she has experienced with others, in such a way that – one could say – it is not possible to isolate one person’s life from that of the people with whom he/she has lived in close contact since birth (JOÃO LOUREIRO, O Direito à Identidade Genética do Ser Humano, op. cit., p. 292).
The image of the person which is assumed by the Constitution is not just that of an individual who lives in isolation and possesses a given genetic code; the Constitution adopts a broader image of the person – a person who is integrated into the effective reality of his/her family and human/social relations. As such, one could say that, up to a certain point, the right to personal identity possesses a heterogeneous content: it includes different types of faculty, and the domain in which they are protected is not absolutely uniform, with the possibility that its intensity differs depending on the type of situation in question (…).
So the legal positions contained within the right to personal identity – the right to know one’s genetic origins, for example – do not necessarily possess a force in constitutional-law terms that is uniform and totally independent of the different contexts in which that personal identity is actually developed. Thus, recognition of a right to know one’s genetic origins does not preclude the legislator from modelling the exercise of such a right in accordance with other interests or values that enjoy constitutional protection and are capable of being reflected in the broader concept of personal identity.”
The Court had already characterised the fundamental right concerned in Ruling no. 23/2006, albeit without prejudice to admitting the possibility that “other values, besides ‘that of an unlimited openness to determining the biological truth of filiation – such as those regarding legal certainty and uncertainty, can play a part in weighing up the interests at stake’, in such a way as to ‘compress the disclosure of the biological truth’ as it were”:
The “right to personal identity not only includes the interest in personal identification (not being confused with other people) and the constitution of that identity, but also, as a precondition for that self-definition, the right to know one’s own roots. Even without committing ourselves to any determinisms, it is not hard to acknowledge that knowing who one is begins (among other things, at least) by knowing who one’s ancestors are, where one’s family, geographic and cultural – and also genetic – roots lie (also see the reference to a ‘genetic identity’, which Article 26[3] of the Constitution considers constitutionally relevant). This aspect of personality – personal historicity (Gomes Canotilho/Vital Moreira, Constituição da República Portuguesa Anotada […] precisely refer to a ‘right to personal historicity’) – thus implies the existence of legal means by which to demonstrate the biological links in question (…), together with the legal recognition of those links.
We must thus deem it an acquired fact that the Constitution enshrines a fundamental right to know one’s maternity and paternity and to see them recognised, as a dimension of the right to personal identity enshrined in Article 26(1).”
Returning to Ruling no. 101/2009, the Court then went on to offer the following considerations:
The “right to form a family is certainly a factor to be taken into consideration when weighing up the subsidiary admissibility of heterologous procreation. From the moment at which one accepts a form of medically assisted procreation that presupposes the donation of gametes by a third party, it would be hard to understand the imposition thereon of a legal regime that tended to affect peace within the family and the bonds of affection which link its members. As such, and given that we have already discussed the constitutional conformity of this kind of procreation when no other is medically possible (…), we should not consider it constitutionally inadmissible for the legislator to create the conditions needed to safeguard the peace and privacy of family life, without interference from third-party donors who, in principle, only sought to assist in the formation of a family.
We should nevertheless underline the fact that the legal regime under which donor identities are not revealed is not a closed one. The National Council for Medically Assisted Procreation holds the information on donor identities and can furnish it under the terms and within the limits provided for in Article 15, both by supplying data of a genetic nature and by identifying situations in which matrimony is precluded, with the further possibility of identifying a donor when a court decides that there are weighty reasons which make such a revelation justifiable [Article 30(2)(i)]. In addition, the weighty reasons referred to in Article 15(4) of Law no. 32/2006 must be considered in the light of the right to personal identity and the right to the development of personality enshrined in Article 26(1) of the Constitution of the Republic, which may prevail in a given case.
Again contrary to the allegations made in the petition, everything that we have said so far means that there is no breach of the principle of equality with regard to persons who are born as a result of the use of MAP techniques.
Notwithstanding the duty of secrecy that binds the persons who intervene in the process, they can access all the information concerning their genetic history, and only access to the donor’s identity itself is subject to prior authorisation by a court. However, this limitation on the knowledge of one’s progenitor (albeit not absolute) is, as we have already implied, justified by the need to preserve other values to which the Constitution affords its protection, so it could never be seen as an arbitrary discrimination that is capable of undermining the principle of equality between citizens.
In the whole of this context, the option which the legislative authorities chose when they established a mitigated regime governing donor anonymity cannot be criticised from a constitutional point of view.”
C.4. The grounds invoked by the petitioners
C.4.1. The anonymity rule in the light of the principle of the dignity of the human person
71. The petitioners argue that the rule that donors and gestational surrogates must remain anonymous is contrary to the principle of the dignity of the human person. However, given the amplitude of the right to personal identity, this allegation would appear to be untenable.
This right is closely linked to the dignity of the human person, of which it is one of the concrete forms of expression:
“Personal identity is what characterises each person as an individualised unit that is differentiated from every other person by a given personal life experience. In a very broad sense, the right to personal identity encompasses the right of each person to live in harmony with him/herself, and at the end of the day is an expression of freedom of conscience projected outwards in certain life choices. The right to personal identity postulates a principle of personal truth. No one should be obliged to live in disharmony with that which he/she is in personal and identitarian terms” (in this sense, see RUI MEDEIROS and ANTÓNIO CORTÊS in JORGE MIRANDA and RUI MEDEIROS, Constituição…, op. cit., note V on Article 26, p. 609).
Let us recall the approach that has been taken in constitutional case law: although biological – genetic, epigenetic and gestational – links are essential to each person’s self-understanding and the construction of his/her identity, precisely because they form part of his/her personal story, they do not define his/her being/person. That which each person is in his/her unique, unmistakeable reality – which is to say, his/her personal identity – goes far beyond aspects like these. This is why the Court said in Ruling no. 101/2009: “The image of the person which is supposed by the Constitution is not just that of an individual who lives in isolation and possesses a given genetic code; the Constitution supposes a broader image of the person – a person who is integrated into the effective reality of his/her family and human/social relations”; and this is why the right to personal identity possesses a heterogeneous content that encompasses various types of ability and faculty (see ibidem).
As applied to donors and surrogates, the anonymity rule before us here partially cancels the personal historicity of each person who is born in the circumstances in question, but is in its own right insufficient to depersonalise him/her – turning a particular individual into someone else who he/she is not – or to force him/her to live an albeit incomplete personal truth which is not his/her own. It may affect his/her awareness of his/her own identity, generating doubts, questions or crises; but it does not annul that identity, as it has been manifesting itself over the course of the person’s life and as it is continuing to do so. Therefore, even if one of his/her fundamental rights is injured, it is not because of that that a person who is prevented from knowing his/her origins can consider that he/she is degraded as a human being. As such, there is no autonomous, specific violation of his/her dignity.
72. With particular reference to donor anonymity, we should also note that the LPMA does not lay down an absolute rule. In truth, and as mentioned in Ruling no. 101/2009, Article 15(4), LPMA, does make it possible for persons born following the use of heterologous MAP techniques to know the identity of their gamete donors, if there are weighty reasons for it and those reasons are recognised by a court.
One could naturally argue that these judicial proceedings would take too long, proving in many life situations to be a factor that excessively conditions the exercise of the right to personal historicity. It is also possible to allege that all the mechanisms which Article 15(2) to (4) makes available to persons born by means of MAP actually end up being useless, due to the silence imposed on everyone who finds out that MAP has been used or knows the identity of the people who took part in the process [Article 15(1)], as well as to the fact that no mention is made in their birth certificates that such persons were born following the use of MAP techniques [Article 15(5)]. In order to be able to exercise the legally recognised right to know information regarding their personal identity, those persons must first of all know – and be able to know – that they were conceived with recourse to those techniques.
Having said that, none of these arguments invalidates the – undeniable – fact that the law provides for a balance between the different constitutional rights which the legislator sees as being in conflict with one another.
As such, initially, the prevailing right is that of the parents (and the donors) to the protection of the privacy of their personal life, and an attempt is made to preserve the family’s unity. However, the fundamental right of the person who was born via MAP to know his/her identity is nonetheless protected by the law. Indeed, once a court has weighed up the circumstances in each concrete case – which the legal norms cannot take into account a priori – the right of the individual born by means of heterologous MAP to know his/her personal historicity can always fully prevail over any other rights, be they those of his/her parents or those of the donors, and the possibility of knowing the latter’s identities is open to him/her. It will thus be up to each person to ask themselves about his/her own identity, and in case of doubt to go to the competent health services or the CNPMA, which will be able to clarify the circumstances that led to his/her birth. It will also be up to him/her to turn to the courts, if and when he/she believes there are weighty reasons that warrant access to the identity of his/her biological progenitors.
Indeed, this duty to question one’s own identity is not something new that only appeared when MAP techniques began to be used. The same situation also arose in relation to the institution of adoption, inasmuch as here too the law does not provide adoptees with any certain means of knowing their own situation.
The fact is that adoptive parents are not under any legal duty to tell the child about the adoption, and Article 213(2) of the Civil Registry Code (CRC) says that “the only reference to filiation in complete birth certificates of children who are fully adopted shall be the names of the adoptive parents”. Paragraph (3) of the same precept goes on to say that “complete birth certificates shall only mention the adoptee’s natural parentage if the applicant expressly requests it” (although it is always mentioned in certificates that are issued as part of the procedural details involved in getting married). Thus, as in the case of heterologous MAP, and with the exception of cases involving certificates issued for marriage purposes – a situation that nevertheless represents a significant difference, in that unlike persons born as a consequence of MAP processes, if an adoptee decides to get married, he/she will necessarily obtain information about his/her natural parentage [see Article 15(5), LPMA] – if their origins have not been disclosed to them, adoptees will only be able to find out about them if they ask questions and resort to the legal mechanisms at their disposal.
As such, and bearing in mind the constitutional values that must be taken into consideration, we are unable to see arguments which are capable of showing that the current legislative solution is not in conformity with principle of the dignity of the human person, not only because there is no degrading instrumentalisation, but also because the challenged norms do not lead to a total compression of the right to personal identity which, by cancelling out the essential content of that right, would necessarily entail an intolerable violation of the dignity of the human person.
73. It is true that it may seem at first sight that neither that fundamental right, nor the others to which the petitioners refer along with it (the rights to the development of personality and to genetic identity), are affected in a way that would be unconstitutional, given that the two parameters cannot be completely divorced from one another in the present analysis.
However, there is an important difference between this finding and the review of the constitutionality of the norms before us here based solely on the rights to personal identity, the development of one’s personality, and genetic identity. This difference lies in the degree of intensity of the injury which the legal regime in question may imply. A total elimination of personal identity – which is not the case here, for the reasons we have given – would constitute a violation of the dignity of the human person. The fact that no such elimination occurs does not, however, exclude the possibility of a potential violation of the specific dogmatic content of the aforementioned fundamental rights.
C.4.2. The anonymity rule in the light of the rights to personal identity, the development of one’s personality, and genetic identity
74. Having concluded that the norms before us are not unconstitutional due to any violation of the principle of human dignity, we must now analyse whether they respect the rights to personal identity, the development of one’s personality, and genetic identity provided for in Article 26(1) and (3), CRP. This analysis must take account of the material densification of those rights, seen from an up-to-date perspective and interpreted in the light of principles equality and proportionality, which the petitioners also invoke.
Along the lines of the arguments put forward by Gomes Canotilho and Vital Moreira, the Court has taken the view that the right to personal identity enshrined in Article 26(1), CRP, not only encompasses the right to one’s name, but also the right to personal historicity, seen as a right to know the identity of one’s progenitors, which can, for example, serve as grounds for a right to investigate paternity or maternity, in such a way that every individual enjoys the possibility of establishing his/her own filiation ties (see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note II on Article 26, p. 462; and Rulings nos. 456/2003, 157/2005, and 101/2009).
However, the Court also acknowledges the difference that exists between the right to know one’s biological paternity and the right to establish the legal filiation tie, as autonomous dimensions of the right to personal identity enshrined in Article 26(1), CRP (on the aforementioned distinction, see JOÃO LOUREIRO, “Filho(s) de um gâmeta menor? Procriação medicamente assistida heteróloga” in Lex Medicinae, Year 3 (2006), no. 6, pp. 26 et seq.; and RAFAEL VALE E REIS, O direito ao conhecimento das origens genéticas, op. cit., pp. 108-109). In this sense, the Court said the following in Ruling no. 401/2011:
“Personal identity consists of the set of attributes and characteristics that make it possible to individualise each person in society and mean that each individual is him/herself and not someone else, is different from others – i.e. is ‘an individualised unit that is differentiated from every other person by a given personal life experience’ (Jorge Miranda/Rui Medeiros, in “Constituição Portuguesa Anotada”, Tome I, p. 609, 2nd ed., Coimbra Editora).
This fundamental right can be seen from both a static perspective – in which genetic identification, physical identification, name and image occupy prominent places – and a dynamic one – where what matters is asserting the biographical truth and the individual’s relationship with society over time.
Ancestry is especially important to a person’s biographic path, in that it shows the identity of those who biologically contributed to the creation of the new being. Knowing who one’s progenitors are or were is an important element in the process of individual self-definition, inasmuch as that information enables the individual to find safe points of reference of a genetic, somatic, emotional and/or physiological nature, revealing the origins of his/her being to him/her. It is an extremely important element of one’s personal historicity. As Guilherme de Oliveira expressively emphasises, ‘knowing who I am requires knowing where I come from’ (in “Caducidade das ações de investigação”, op. cit., p. 51). One can therefore say that this information is a factor which shapes one’s own identity, constituting part of the core of each individual’s singular personality.
However, the legal establishment of filiation ties, with all their effects, granting the individual the status inherent in the condition of a child of certain persons, also takes on an important role in the individualising characterisation of a person in life in society. Here, ancestry serves as one of the elements that identify each person as a singular individual. ‘Being a child of’ is something that distinguishes and characterises us in other people’s eyes, so the right to personal identity also includes a right to the legal establishment of one’s maternity and paternity.”
In this sense, although the right to one’s personal identity is not consumed by the right to the development of one’s personality, it possesses a strong connection with different dimensions of the latter. This is particularly true with regard to both the free formation of one’s personality or the freedom of action as an “autonomous subject endowed with decision-making self-determination”, without being subjected to a planning or imposition of models of personality by the state, and the protection of one’s integrity, seen as a guarantee of the personal/legal sphere in the development process – i.e. a “protection of the freedom to outwardly express one’s personality” (see GOMES Canotilho and VITAL MOREIRA, Constituição…, op. cit., note IV on Article 26, pp. 463-464). The fact is that both dimensions rest on each person’s individuality, ensuring that he/she enjoys a space in which to develop it dynamically, be it as a deepening of his/her self-awareness and self-affirmation, be it in his/her relationship with others.
With regard to the right to genetic identity referred to in Article 26(3), CRP, let us recall what was said in Ruling no. 101/2009:
“It is to the extent that a person’s personality is conditioned by the genetic factor that one’s genetic identity becomes an essential component of the right to personal identity (JORGE MIRANDA/RUI MEDEIROS, Constituição Portuguesa Anotada, Tome I, op. cit., pp. 204-205).
Having said this, the guarantee of genetic identity especially refers to the intangibility of the genome and the unicity of each person’s genomic makeup, essentially with the object of preventing the genetic manipulation and cloning of human beings (JOÃO LOUREIRO, O Direito à Identidade Genética do Ser Humano, in Portugal-Brasil Ano 2000, “Studia Iuridica” 40, Coimbra, 1999, p. 288).”
75. The right to personal identity of a person born with recourse to heterologous MAP techniques provided for in Article 26 (1) CRP), in the dimension where it entails a right to know one’s genetic ancestry, can come into conflict with both the right to privacy and the reserved status afforded to the private life of his/her legal parents and the same right on the part of his/her donors, both of which are also enshrined in the same paragraph of the Constitution. One can also say that the decision to opt for the anonymity rule is based on an idea that it is necessary to protect peace within the family – an idea that draws from Article 67(1), CRP, which places the state under an obligation to create “all the conditions needed to enable family members to achieve personal fulfilment”. Finally, there are also those who argue that a legal regime based on the right to know one’s origins would significantly reduce the number of donors, thereby compromising the creation of favourable conditions for the development of heterologous MAP and thus engendering difficulties for other constitutionally relevant interests, such as the existence of families with children.
76. In the weighing-up process it conducted in Ruling no. 101/2009, the Court attached significant importance to the danger of affecting the peace within the family and the loving emotional bonds that link the latter’s members – namely parents and children. It considered it constitutionally legitimate to create “conditions needed to safeguard the peace and privacy of family life, without interference from third-party donors who, in principle, only sought to assist in the formation of a family”.
It is clear that donors are also encompassed by the obligation to maintain absolute confidentiality laid down in Article 15(1), LPMA. However, the truth is that donors don’t even have access to the data with regard to the MAP process [see Article 16, LPMA, and Articles 18(1) and 19(1) of Regulatory Decree no. 6/2016 of 29 December 2016]; and in any case, the question of unconstitutionality here doesn’t concern the donors’ interest in knowing the beneficiaries of their donations and the persons who were born as a result of the use of the genetic material they donated. On the contrary, the problem lies in the fact that it is impossible (or very difficult) for those persons to know the donors whose genetic material forms an integral part of their genomic constitution.
At the same time, where the relationships between parents and children are concerned, as the latter become more autonomous and then reach the age of maturity, the importance of any interest on the part of the former in hiding the circumstances in which the latter were conceived gradually diminishes. Indeed, from the moment at which the child knows or suspects that he/she was born as a consequence of heterologous MAP processes and forms the desire to clarify his/her genetic origins, it is the parents’ opposition to that intention that may be capable of threatening the stability of the loving emotional bonds between them.
One cannot see any reason why an adult person who becomes aware that he/she was born with recourse to heterologous MAP techniques should feel any the less emotionally and lovingly linked to his/her legal parents once she/he knows the identity of the gamete donors who were essential to the formation of his/her genetic identity; and even if such a crisis were to occur, there is no reason why the state should interfere in it, privileging the parents who resorted to heterologous MAP, to the detriment of the right of the children who were born in the wake of the use of those techniques to know their genetic ancestry and who, seeking to exercise that right for reasons linked to their self-understanding, their own definition of their identity and the desire to know their biographical truth, look for the origins of their being in order to “find safe points of reference of a genetic, somatic, emotional and/or physiological nature” (see Ruling no. 401/2011).
77. It is also important to consider the perspective of the donors, as persons who, as part of a MAP process, place their procreational capacity and their gametes in the service of someone else whom they don’t know, with the goal of conceiving a child.
From the legal point of view, the donor’s status is not one of father or mother of the person who is born in this way, given that Article 10, LPMA, prohibits the establishment of filiation ties between them. As a result, the possibility of knowing the identity of one’s gamete and/or embryo donors in no way implies the recognition of any legal tie of a filial nature: there is an effective distinction between disclosing the donors’ identities and endowing them with the rights and obligations that go with paternity or maternity – something that would be hard to understand, given the absence of any parental project on their part.
On the other hand, the figure of the donor is important, because one of the main arguments put forward by the authors who defend the anonymity rule is the risk of a reduction in donor numbers. However, although this tendency does sometimes occur in an initial phase, immediately following legislative changes in the direction of greater openness, the truth is that in countries which have already made that alteration, the number of donors eventually rose again. According to the UK Human Fertilisation and Embryology Authority , the number of both donors and treatment cycles using donated gametes has substantially risen in the last few years (see Fertility treatment 2014 – Trends and figures, available at http://ifqtesting.blob.core.windows.net/umbraco-website/1783/fertility-treatment2014-trends-and-figures.pdf). This argument thus decreases in relevance, to the extent that it seems reasonable to claim that the process of attracting donors is influenced by various different factors and that, in a legal framework in which the prevailing rule is the right to know one’s origins, the donors who are attracted are necessarily more aware of their role in the creation of a life and are thus better donors from an ethical point of view.
Be that as it may, the absence of conclusive evidence that the aforementioned rule of the right to know one’s origins leads to a drastic fall in donor numbers means that this empirical consideration is not a relevant obstacle to the recognition of such a right.
78. In short, the position that donations within the context of a MAP process should be understood in accordance with a true principle of responsibility on the part of everyone involved has been gaining in strength.
The evolution in this domain that has taken place on the Comparative Law level is elucidative. What is more, the political and social notions in this country have also evolved in this regard. Especially noteworthy in this respect is the guarantee of access to the knowledge of one’s origins that is now available to adoptees aged sixteen or over who expressly ask for it, as laid down in Article 6(1) of the Legal Regime governing the Adoption Process (RJPA) approved by Law no. 143/2015 of 8 September 2015 (also see Article 1990-A, CC, which was added to the Civil Code by Law no. 143/2015).
The truth is that we have gone from a time when keeping a person’s origins secret was considered justifiable and even desirable, to a conceptual framework that promotes transparency in human relations, including family relationships. Across Europe we are witnessing a progressive recognition in broad terms of a right to access information about one’s own origins, including donor identities, as a necessary outcome of the constitutional protection afforded to the right to identity and personal historicity.
It is thus hard to understand why the Portuguese legislator – which recently made substantial changes to the LPMA – continues to opt for a solution that is centred around gametes, taken in isolation, and as a rule erases their donor’s identity, assuming – and we are unable to see sufficient grounds for these assumptions – that the donor will reject recognition of his/her role in the creation of human life, or that fully acknowledging his/her existence may in some way diminish the absolutely essential role of the parents – parents on both the legal and the factual levels – of persons born by means of MAP with third-party gametes.
79. The essence of the above remarks is also valid with regard to the question of knowing the identity of the gestational surrogate.
Despite giving birth to the child, the surrogate is not deemed to be the mother [Article 8(7), LPMA]. However, on the other hand, the nature of the intrauterine relationship and its importance to the formation of the future child (see § 43 above) mean that she can become a relevant reference point in the child’s “biographical itinerary” – and the closer her relationship with the beneficiary couple, the greater the probability that this will be the case. The fact is that gestation is a differentiating personal life experience, so the child’s wish to know the identity of the person who bore him/her is understandable, for reasons that are analogous to those which underlie the wish to know one’s genetic origins.
In this context, the considerations we set out in § 76 above are fully applicable here. At the same time, within the framework of the Portuguese gestational surrogacy model, the only people who become surrogates are those who expressly and consciously assume their willingness to cooperate with the beneficiary couple in the procreation, in such a way that the couple creates a family with a child with whom they have a genetic link (see §§ 8, 24 and 28 above). Consequently, the principle of responsibility referred to above is necessarily already present (see § 79 above).
80. As such, and in the light of the current ideas about the importance of knowing one’s own origins as a fundamental element in the construction of one’s identity, we must conclude that the option adopted by the legislator in Article 15(1) and (4), LPMA – that the rule is that the donors in cases of heterologous procreation (non-absolute rule) and surrogates (absolute rule) should both remain anonymous – is deserving of reproach in constitutional terms. In effect, in today’s world it is hard to understand that the standard rule is still one of an anonymity which has an undoubtedly serious effect on the rights to personal identity and the development of one’s personality, as enshrined in Article 26(1), CRP. If we combine the requirements derived from the essential core of those rights with the standard imposed by the principle of proportionality, as enshrined in Article 18(2), CRP, and repeatedly mobilised and explained by this Court, that choice would appear unnecessary, even when it comes to safeguarding other fundamental rights or values to which the Constitution affords its protection and which can always be adequately protected by means of a legal regime that establishes the opposite rule: the possibility that donors and surrogates can remain anonymous only when there are weighty reasons for it, to be assessed on a case-by-case basis.
D. Dispensation from automatic official investigation of paternity
81. The petitioners also question the dispensation from an automatic official investigation of paternity established in Article 20(3), LPMA, which reads as follows:
“If the only consent was that given by the person subjected to the MAP technique, in accordance with Article 14, the birth certificate shall be drawn up in such a way that hers is the only established parenthood, without any need for a subsequent automatic official investigation process.”
This norm only applies to cases in which a woman individually – i.e. outside the context of a marriage or a de facto partnership – has made use of MAP techniques in order to become pregnant, inasmuch as in all other cases, and namely that referred to here, such techniques can only be applied once “the beneficiaries” have given their consent, as provided for in Article 14, LPMA. As defined in Article 6(1), LPMA, the beneficiaries are: first of all, “different-sex couples or all-female couples”, in which case the consent of both members of the couple is needed; and secondly, as we have said, women who are “alone” in the sense that when they ask to use MAP techniques, they are not accompanied by a male or female spouse or partner.
The petitioners did not include the aforementioned Article 6(1) in their review request, although, as we said in § 36 above, it is capable of raising questions of unconstitutionality linked to the possibility of creating single-parent families.
It is true that they take the point of view expressed in Opinion no. 87/CNECV/2016, according to which Law no. 17/2016 brought about a “change in the paradigm regarding the use of MAP techniques”. However, they do so in a context in which they seek to show that [the Law] redirects attention away from the rights of the child – namely the right to know his/her genetic origins – in favour of the exclusive protection of the woman and her “right to form a family and have children”. In this sense, they say the following about the alleged violation of the right to personal identity:
The “right to know one’s genetic origins takes on a substantial importance – as is the case in this Law – when it comes to MAP of a heterologous kind, inasmuch as heterologous insemination now has a much broader field of application, precisely because it no longer possesses a subsidiary nature and, in accordance with Articles 4(3) and 6(1), becomes an alternative method of procreation.
The question which arises is not whether a legal regime that affords total anonymity to the donor is constitutional, but rather whether it is constitutional to establish donor anonymity as a rule and the possibility of knowing one’s identity as an exception. At stake here is the relative weight which the right to personal identity warrants and the importance afforded to it in the regime instituted by the Law, vis a vis the rights to form a family and to the privacy of personal and family life.”
And then, further on in the review request:
“The petition’s signatories consider that the ‘change of paradigm’ brought about by Law no. 17/2016 of 20 June 2016 and the broadening of the regime to include ‘gestational surrogacy’ as approved by Law no. 25/2016 of 22 August 2016 have lent new urgency to the question of knowing the genetic identity of children conceived by means of MAP, namely via heterologous insemination. This is due not only to the universal scope of this matter – as everyone could be born with recourse to such techniques – but also to the imperative nature and clarity of the constitutional precept, which is grossly violated and, in general terms, set aside by the Law.”
The fact that this is what the petitioners are concerned about is unequivocally confirmed by the concluding part of their request: the reasons why they consider that “the part of the new wording of Article 20(3) of the MAP Law which dispenses with the automatic official investigation of paternity when only the consent of the person subjected to MAP was required” is in breach of the Constitution are exactly the same as those invoked as grounds for questioning the constitutionality of the part of Article 15, LPMA, “which subjects the possibility that a person who is born via MAP can obtain knowledge about the donor’s identity to the need to bring court proceedings and the existence of weighty reasons why the confidentiality rules should be broken”. The review parameters they call on are also the same. Indeed, it is significant that the petitioners never refer to fathers (as a figure of reference, alongside mothers) or to fatherhood as an eminent social value, alongside that of motherhood [see paragraphs (1) and (2) of Article 68, CRP, respectively].
It is not this Court’s place to question the reasons that led the petitioners to formulate their request in this specific way, but rather, in accordance with the principle of judicial passivity, to note that the Court is required to restrict itself to considering the constitutional conformity of the norm contained in Article 20(3), LPMA, while bearing in mind the fact that Article 6(1) of the same legislative act is currently in force. What is more, the aforesaid Article 20(3) is also a corollary of the solution set out in Article 10(2), LPMA – “(…) donors may not be deemed progenitors of the child who is going to be born” – which means that this part of the review request is neither meaningless nor useless.
82. The fact is that when a woman asks to use MAP techniques on her own – i.e. not as a member of a couple made up of persons who are married to one another or live under circumstances analogous to those of spouses as set out in the Law before us – her pregnancy only becomes possible with the use of donated male gametes. She may also use donated embryos, but the sperm that is inevitably needed in order to conceive a child will in any case come from a third party who is not related to her by a de facto partnership or a marriage. As such, and with recourse to science, what is created is ab initio a voluntarily single-parent family.
As such, it appears that there would be no sense in conducting an automatic official investigation of paternity, given that even if it were possible to know the donor’s identity, he could not be deemed the progenitor of the child who then came to be born.
In the present case, this means that the legislator limited itself to establishing an exception to the rule that paternity must automatically be investigated, thereby avoiding both the difficulties for mother and child that would inevitably result from such an investigation, and the mobilisation of public resources for a process with no purpose at all. Given the specificity of this situation (clearly distinct from that of children of “single mothers” who did not use MAP techniques – children who will thus always have a biological and legal father whose identity is determinable), we are unable to see how the constitutional principles invoked by the petitioners may have been violated.
To begin with, the solution adopted in Article 20(3), LPMA, cannot be seen as being in breach of the principle of equality, inasmuch as the legislator sought to find a different rule for a reality that is also different, where the conception of a child is concerned. At the same time, the norm in question appears reasonable and proportional, bearing in mind the need to safeguard fundamental rights pertaining to the mother, and to the child conceived alone by a woman who used MAP – particularly the right to respect for their private and family life.
Turning to the rights – also invoked by the petitioners in this respect – to personal identity, to the development of one’s personality and to genetic identity, and the principle of the dignity of the human person, we should note that any injuries on this level would not be derived from the dispensation from an automatic official investigation of a paternity which doesn’t exist de iure, but rather from the use of donated gametes in its own right. This is a question that would imply an assessment of the constitutionality of the use of heterologous procreation, but such an assessment was not requested either.
E. Limitation of effects
83. We should recall that the essential traits of the Portuguese gestational surrogacy model include (among others): the fact that gestational surrogacy contracts are exceptional in nature and are subject to prior authorisation [see Article 8(2) and (3) and § 9 above], with the competence to grant that authorisation pertaining to the CNPMA, which must first hear the views of the Portuguese Medical Association; and the fact that the model sets aside the general criterion for establishing filiation provided for in Article 1796(1), CC, inasmuch as the child who is born as a consequence of this form of procreation is deemed to be the son/daughter of the person or persons who appear as the beneficiary or beneficiaries in the aforesaid contract [see paragraphs (4) and (7) of the aforementioned precept and, once again, § 9 above].
Given the date on which the amendments to Article 8 of the da LPMA made by Law no. 25/2016 entered into force – 1 August 2017, as derived from Articles 3 and 4(2) of Law no. 25/2016 of 22 August 2016, taken in conjunction with Articles 1 and 8 of Regulatory Decree no. 6/2017 of 31 July 2017 – it is possible that gestational surrogacy contracts which the CNPMA has already authorised under the exceptional regime that is now declared unconstitutional with generally binding force are currently in the phase in which they are they are being executed. As a rule, this declaration of unconstitutionality has effect from the moment at which the norms that are declared unconstitutional entered into force [see Article 282(1), CRP]. As a result, such contracts will have to be deemed unauthorised, and to that extent, entered into under a regime that does not permit gestational surrogacy contracts.
The object of these contracts is for the gestational surrogate to become pregnant by means of the use of MAP techniques, in such a way that, at the end of the gestation period, she gives birth to a child who will be deemed to be the beneficiaries’ son/daughter. The Court therefore recognises that, in the event that the therapeutic MAP processes which are to be implemented as part of the execution of gestational surrogacy contracts authorised by the CNPMA have already begun, it is highly probable that there are already gametes which have been collected or embryos which have been formed with a view to the implementation of concrete gestational surrogacy processes. It is also possible that uterine embryo transfers and ensuing pregnancies have already occurred.
Given the intrinsic value of all these legal interests and the respect for the health and physical integrity of the persons who have already been the object of medical acts involved in the use of MAP techniques, imperative reasons of legal certainty and in the light of both the fundamental values involved – especially in cases in which extrauterine or intrauterine human life already exists – and the state’s duty to protect childhood, mean that it is justified to limit the effects of both the declaration of the unconstitutionality of Article 8(4), (10) and (11), LPMA, with regard to such contracts, and the consequential unconstitutionality of paragraphs (2) and (3) of the same Article. It is also justified to limit the effects of the declaration of the unconstitutionality of Article 8(8), taken in conjunction with Article 14(5), and thus also of the consequential unconstitutionality of Article 8(7), all of the LPMA.
III. Decision
On the grounds set out above, the Court hereby decides:
a) To declare the unconstitutionality with generally binding force of the norms contained in paragraphs (4), (10) and (11) of Article 8 of Law no. 32/2006 of 26 July 2006, and consequently of the norms contained in paragraphs (2) and (3) of the same Article, in the part where they permit the entry into gestational surrogacy transactions on an exceptional basis and subject to prior authorisation, because they are in breach of the principle that laws must be determinable and precise, which is a corollary of the principle of a democratic state based on the rule of law; and of Parliament’s exclusive legislative competence, as derived from the combined provisions of Articles 2, 18(2) and 165(1)(b) of the Constitution of the Portuguese Republic, with reference to the rights to the development of personality and to form a family enshrined in Articles 26(1) and 36(1) of the Constitution.
b) To declare the unconstitutionality with generally binding force of the norm contained in paragraph (8) of Article 8 of Law no. 32/2006 of 26 July 2006, taken in conjunction with Article 14(5) of the same Law, in the part whereby the gestational surrogate is not allowed to revoke her consent up until the moment at which the child is surrendered to the beneficiaries, because such a norm is in breach of her right to the development of her personality, interpreted in accordance with the principle of the dignity of the human person, and of the right to form a family, in both cases because it excessively restricts the right in question, as derived from the conjugation of Article 18(2) with Articles 1 and 26(1) in the first case and with Article 36(1) in the second, all of the Constitution of the Portuguese Republic.
c) To declare the consequential unconstitutionality with generally binding force of the norm contained in paragraph (7) of Article 8 of the same Law.
d) To declare the unconstitutionality with generally binding force of the norm contained in paragraph (12) of Article 8 of Law no. 32/2006 of 26 July 2006, because it is in breach of the child’s right to personal identity provided for in Article 26(1) of the Constitution of the Portuguese Republic, of the principle of legal certainty derived from the principle of a democratic state based on the rule of law enshrined in Article 2 of the Constitution, and of the state’s duty to protect childhood enshrined in Article 69(1) of the Constitution.
e) To declare the unconstitutionality with generally binding force of the norms contained in paragraph (1) of Article 15 in the part where it imposes an obligation of absolute confidentiality with regard to the identity of persons who participated in a gestational surrogacy procedure as donors or as gestational surrogates in relation to persons born as a consequence of a process involving medically assisted procreation using donated gametes or embryos, including in gestational surrogacy situations, and to declare the unconstitutionality with generally binding force of paragraph (4) of Article 15 of Law no. 32/2006, which is in breach or the rights to personal identity and to the development of the personality of such persons, on the grounds that these norms unnecessarily restrict the aforementioned rights under the combined terms of Articles 18(2) and 26(1) of the Constitution of the Portuguese Republic.
f) Not to declare the unconstitutionality of the norms contained in the rest of the Articles of Law no. 32/2006 of 26 July 2006 mentioned in the request submitted by the petitioners.
g) Under the provisions of Article 282(4) of the Constitution of the Portuguese Republic, to order that the effects of the declarations of unconstitutionality set out in paragraphs (a), (b) and (c) shall not apply to gestational surrogacy contracts that have been authorised by the National Council for Medically Assisted Procreation (CNPMA), are currently in the process of execution and under which the therapeutic medically assisted procreation processes referred to in Article 14(4) of Law no. 32/2006 of 26 July 2006 have already begun.
Lisbon, 24 April 2018 – Pedro Machete – Maria de Fátima Mata-Mouros (partly dissenting as per the attached opinion) – Gonçalo de Almeida Ribeiro (partly dissenting as per the attached opinion) – Maria José Rangel de Mesquita (partly dissenting as per the attached opinion) – José Teles Pereira (partly dissenting as per the attached opinion) – Fernando Vaz Ventura [concurring with regard to paragraph (e) of the decision, as per the attached opinion; dissenting with regard to paragraphs (b) and (c) of the decision, for the reasons set out in the attached joint opinion] – Catarina Sarmento e Castro (partly dissenting as per the attached opinion) – Lino Rodrigues Ribeiro (dissenting with regard to paragraphs (c) and (d), as per the attached joint opinion) – Claudio Monteiro (partly dissenting as per the attached opinion) – João Pedro Caupers (concurring opinion attached) – Maria Clara Sottomayor (partly dissenting as per the attached opinion) – Manuel da Costa Andrade.
Justice Joana Fernandes Costa is not present and will therefore not sign the decision, but dissents with regard to paragraphs (b) and (c) in their entirety and paragraphs (e) and (g) in part, as per the attached joint opinion with regard to paragraphs (b) and (c) and the attached individual opinion with regard to paragraphs (e) and (g).
DISSENTING OPINION
1. Partly dissenting.
I consider the gestational surrogacy model laid down in Article 8 of Law no. 32/2006 of 26 July 2006 – the Law governing Medically Assisted Procreation (LPMA) – with the wording given to it by Law no. 25/2016 of 22 August 2016 to be unconstitutional because it violates the principle of the dignity of the human person enshrined in Article 1 of the Constitution of the Portuguese Republic (CRP), and specifically with regard to assisted procreation, in Article 67(2)(e) of the Constitution. As such, I voted for the unconstitutionality of the whole of Article 8, LPMA and the consequential unconstitutionality of all the norms regarding gestational surrogacy set out in that Law. I therefore find myself in disagreement in that respect with paragraph (f) of the decision.
It is thus an a fortiori conclusion – in that, if I consider the whole model to be unconstitutional, I necessarily deduce therefrom that the different norms which make it up are themselves unconstitutional – that I would concur with paragraphs (a), (b), (c) and (d) of the majority decision, namely with regard to the declaration of the unconstitutionality of Article 8(4), (7), (8), (10), (11) and (12), LPMA.
I also have objections with regard to the delimitation of the last question of constitutionality raised in the request, with regard to Article 20(3), LPMA.
2. Central to the analysis of the question of the constitutionality of Article 8, LPMA – which provides for gestational surrogacy as a form of procreation that employs a medically assisted procreation (MAP) technique – is how it measures up against the principle of the dignity of the human person. The principle of the dignity of the human person, which is proclaimed in Article 1 of the Constitution, confers a unity of meaning, value and practical consistency on the constitutional system of fundamental rights and is an essential element in its interpretation and integration, inasmuch as it sees the person as both the foundation and the purpose of society and the state.
As such, the eminent value ‘human dignity’ determines the fundamental rights and is shaped by their content. This is also the context in which Article 67(2)(e) of the Constitution prohibits procreation techniques that are harmful to human dignity, setting the limits on the regulation of MAP which must reflect the different fundamental rights.
As the National Council of Ethics for the Life Sciences (CNECV) says, in line with the Convention on Human Rights and Biomedicine, “the decision on the use of MAP techniques must be subordinated to the primacy of the human being – a fundamental principle that rejects his/her instrumentalisation, and enshrines the dignity of the human being and the ensuing protection of his/her rights, under any circumstances, in the face of the applications of science and medical technologies (…)” [see Relatório e Parecer do Conselho Nacional de Ética para as Ciências da Vida (Report and Opinion of the National Council of Ethics for the Life Sciences) no. 87/CNECV/2015, point III. 4., p. 11].
3. The view expressed in the Ruling is that only an instrumentalisation which annuls or disregards personal autonomy can be seen as violating human dignity because it reduces the person to a thing or object (§ 28). Moreover, the Ruling even goes so far as to say that, from the surrogate’s point of view, that which legitimates her participation in the gestational surrogacy process is the free and responsible affirmation of her personality – a form of exercising the fundamental right to the development of her personality enshrined in Article 26(1), CRP, which is ultimately rooted in her dignity (see § 28).
The Ruling then develops this idea, undertaking a layered assessment of the process of procreation by gestational surrogacy as instituted in the LPMA. On an initial level – that of the model – it differentiates between the surrogate’s perspective and that of the child conceived in this way; on a second level – that of the legal regime – it differentiates between the moment at which the contract is entered into and that at which it is fulfilled.
This argumentative methodology reflects an excessively individualistic view of the fundamental rights problem in question, in that it analyses the constitutional validity of the proposed surrogacy model from the surrogate’s perspective, seen separately from the relationship which links her to the being who is in the process of gestation. As such, while maximising the individual dimension of personal identity in this context, the Ruling fails to attach due value to the whole of the relational dimension which also characterises it. Adopting a line of thought whereby, as a rule, each person is the judge of his/her own individual dignity, the Ruling reduces the dignity of the human person to the exercise of the surrogate’s liberty and autonomous will.
This detachment from the communitarian matrix paradigm undermines the prescriptive value of natural and social reality in favour of individual will – something with which I am unable to concur.
In addition to restricting the idea of human dignity to a mere expression of individualism, it neglects the truth, as if the latter were not also a relevant part of human dignity.
4. Tempting though it may seem to rely on the arguments of liberty and free will in order to assess the constitutional validity of gestational surrogacy, doing so disregards the controversy about the instrumentalisation of the woman – a discussion that cannot be avoided.
Although the concepts of personal dignity and autonomy are inseparable, they are not interchangeable. Ensuring freedom is not enough to guarantee respect for human dignity. Freedom cannot be understood as an unlimited, arbitrary exercise of will; it always implies responsibility. Each person, integrated as they are into a society, must be understood within their relationship with others. Each person’s dignity presupposes the dignity of the other. Limiting a person’s autonomy in those cases in which its exercise has implications for others is thus inevitable and legitimate.
If we don’t attach due value to the vulnerable condition of the being who is going to be born, his/her status will tend to be reduced to that of an object of the rights of adults, with the child ceasing to be recognised as a unique and non-disposable being imbued with objective ontological dignity. Adopting a consequentialist logic, [the Ruling] assumes that the child will never have anything to complain about, given that if it were not for the technique that was adopted in fulfilment of the agreement between adults, he/she would not even exist (see § 32).
An analysis moulded on the basis of the model of a free, adult individual fails to consider the children, who are precisely those who are the most in need of protection within the scope of the process of procreation by means of gestational surrogacy.
I am unable to go along with such an analysis, first and foremost because it fails to consider that personal identity is inherent to each singular human person, throughout his/her entire biological existence, as his/her structural characteristic.
5. Gestational surrogacy intentionally breaks the bond between mother and child that begins in the uterus, even before birth, moulding the significance of the act of conception and the personal value of the roles involved, to which the construction of the human being’s personal identity is entrusted.
While it is an unquestionable fact that dignity is a value which pertains to each individual person in their own right, when considering it we cannot ignore that it is also fulfilled in the relationship with other persons. Within the procreation process, this relational element involving two beings takes on an exponentially greater density.
However, it is only when we consider the relational dimension of human dignity – which is absent from the Ruling with regard to the reciprocity of the connection that is established between the surrogate and the unborn child, between the woman in and immediately after labour and the new-born child, or even between the recent mother and the baby – that we are able to understand that the problem of constitutionality with regard to this fundamental principle does not lie in the fact that the Law makes no provision for the surrogate to be able to revoke her consent. It lies instead in the possibility of giving that consent in itself – consent to serve as a simple instrument in the gestation and birth of a child whom the surrogate doesn’t want to be her son/daughter.
Besides this, it seems to me that it is not very coherent to conclude – as the Ruling does – that the regime laid down in Article 8(8), LPMA, violates the surrogate’s dignity because no provision is made for her to revoke her consent, after previously saying that consenting to bear a child for someone else doesn’t violate that dignity precisely on the grounds that the regime ensures that she is acting of her own free, informed will (see e.g. §§ 28, 43, 46 and 47). To take the view that the violation of human dignity lies in the irrevocability of the consent and not prior to that, in the fact that it permits that consent in the first place, is to ignore the paradox of “voluntary servitude”. As Francesco d’Agostino (Justiça. Elementos para Uma Teoria, Principia, Cascais, 2009, pp. 26-27) notes, “(…) Choosing voluntary servitude is (…) existentially contradictory: someone who freely chooses slavery knows that he/she is thereby condemning him/herself to be definitively deprived of the possibility of subsequent free choices”.
Nor is it very coherent to argue that it is necessary to provide for the consent to be revocable throughout the whole process, while simultaneously using the fact that the surrogate’s renunciation of maternity [Article 8(1)] makes it possible to establish filiation in relation to the other contracting parties ab initio, in that the child’s parents are defined even before conception, as an argument for denying the idea that the child is reified or abandoned (see § 32).
In my view and as I will explain below, these incoherencies in the majority’s arguments confirm that the problem of constitutionality posed by the gestational surrogacy provided for in the LPMA is not confined to mere concrete aspects of the regime, as the Ruling says, but rather results from the model adopted in that Law, in its entirety.
6. Despite being an act of an intimate nature, the effects of human procreation extend beyond the private domain. Procreation materialises identities, establishes bonds and relates generations, identifying who will be responsible for the forms of care that will be given by and to parents and children, grandparents and grandchildren and relatives and akin in general. As a human procreation process, the effects of gestational surrogacy are not restricted to biological reproduction: it originates kinship bonds which, although they presuppose some sort of recognition, do not possess a merely biological significance, but rather confer anthropological meaning and worth, which constitute one of the bases for humanisation.
As such, in addition to considering the personal rights enshrined in Article 26 of the Constitution, an analysis of whether gestational surrogacy is in conformity with the principle of the dignity of the human person must also take account of both other fundamental rights and values which the Constitution enshrines with regard to family and filiation, and the obligations to protect childhood which Article 69(1) and (2), CRP, imposes on the state.
The Constitutional Court has gradually been stating that, in addition to the right of progenitors to establish filiation ties, the essential content of the right to form a family also encompasses the right of the child to know who his/her parents are and to establish the corresponding filiation – rights which the Court has said are not derived solely from the right to personal identity [Article 26(1), CRP]. As the Court recently emphasised (see Ruling no. 346/2015), the right to know the identity of one’s biological parents and the son/daughter’s right to establish the respective legal tie fall within the scope and under the protection of both the fundamental right to personal identity [Article 26(1), CRP] and the fundamental right to form a family [Article 36(1), CRP].
As a result, the right to know one’s genetic origins cannot fail to include a protection dimension that limits the legislator when it adopts legal solutions which allow progenitors to freely dispose of their respective legal status by choosing whether or not to assume the legal status of father or mother. In the same way, the right to personal historicity also leads to a principle whereby there are limits on the freedom of the choice to assume or reject the role which the law reserves as a consequence of the fact of having conceived and given birth to a child.
These rights are also recognised internationally in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 and ratified by Portugal on 21 September 1990, whose Article 7 states that every child has the right to an identity, including “the right to know and be cared for by his or her parents”.
7. Leaving aside for-profit surrogate motherhood – which the legislator has precluded and is in any case prohibited by Article 21 of the Convention on Human Rights and Biomedicine – the legislative solutions adopted in the legal orders that permit and regulate the practice of gestational surrogacy are differentiated by the ways in which they establish the associated legal maternal and paternal ties: on the one hand, there are models in which those ties are established by law; on the other, those in which filiation is established by the courts. The gestational surrogacy model defined in Article 8(1) and (7) is characterised by the fact that the surrogate hands the child over to the beneficiaries and the latter acknowledge maternity (and also paternity) in relation to him/her ab initio. This differs from other models – for example, that currently in force in the UK (based on the issue by a court of a “parental order” that transfers legal maternity).
By having Article 8(1), LPMA, define “gestational surrogacy” as the situation in which a woman is willing to undergo a pregnancy on someone else’s behalf and to hand the child over following the birth, “renouncing the powers and duties pertaining to maternity”, the legislator clearly and expressly recognises powers and duties, which are inherent in maternity, as pertaining to the surrogate.
In fact, it is in this capacity that the woman becomes a party to the contract and gives the necessary consent. This would also be the outcome if the Law were to enable the surrogate to renounce at any time during the process. However, the norm in question enables her to renounce those duties by a simple act of will.
In turn, Article 8(7), LPMA, says that the child born as a result of the gestational surrogacy is deemed to be the son/daughter of the respective beneficiaries, disregarding fundamental rights that also shape the dimension of human dignity as a limit which the Constitution imposes on MAP techniques [Article 67(2)(e), CRP]. These include the fundamental right provided for in Article 36(5), CRP, whereby “Parents have the right and the duty to educate and maintain their children”, and that enshrined in Article 36(6), CRP, under which “Children may not be separated from their parents, save when the latter do not fulfil their fundamental duties towards them, and then always by judicial decision”.
In truth, by undoing the link between gestation, childbirth and the “mother”, gestational surrogacy implies the fragmentation of the meaning of filiation and motherhood. To start with, because a dispersal of the various elements incorporated in the whole changes the nature of the concept. The use of the woman as “one who gestates” turns the “genitor” (from the Latin, mater) into a mere service deprived of any personal relationship, deconstructing the symbolic idea that “motherhood” is recognised to possess as a civilizational matrix, with consequences at the level of the representation of the relationships between mother and child and vice versa. The dissociation and fragmentation of motherhood implied by gestational surrogacy poses problems in terms of compatibility with its eminent social value, which the Constitution says must warrant and be afforded “protection by society and the state” [Article 68(1) and (2)].
Making the duties of association with one another which derive from family ties depend on a choice (set out in a contract) leads to a breakdown in the obligations to be solidary with one another which fall to the family’s members. This undermines the constitutional protection of “motherhood” and “fatherhood” as factors in the effective implementation of the right to the integral development of personality and the guarantee of the very value of the family as a “natural and fundamental group unit of society” [Article 16(3), UDHR]. Such a fragmentation at the level of family and community representation is also reflected in future generations.
I am not unaware of the developments that biotechnological progress can bring about in concepts like “mother” or “father”, which used to be seen as clear and unquestionable, but not even the cleverest conceptual constructivism could turn the “child’s right to his/her parents” into an “adult’s right to a child”.
8. Unlike the majority, my view is thus that the problem of constitutionality posed by the gestational surrogacy set out in Article 8, LPMA, in terms of its failure to respect the limit imposed by the need to safeguard the human person laid down in Article 67(2)(e), CRP, does not arise solely due to the limitation on the revocability of the consent that results from Articles 8(8) and 14(4) and (5), LPMA; rather – and first and foremost – it is caused by the fact that the Law makes it possible for a woman to be willing to undergo a pregnancy on someone else’s behalf and to hand the child over after he/she is born, renouncing the powers and duties that pertain to motherhood.
If there were any doubts as to the surrogate’s instrumentalisation, the Ruling itself does away with them when, albeit only in its analysis of the regime, it confirms after all that “The characteristics that are specific to pregnancy as a biological, psychological and potentially emotional phenomenon with a nature that is dynamic and unpredictable where a variety of vicissitudes are concerned mean that one cannot be sure that the will initially manifested by the surrogate is entirely informed (…)” (see § 46). How does one conjugate this with the previous assumption that the surrogate’s role in the gestational surrogacy is legitimated by the free, responsible affirmation of her personality [Article 26(1), CRP], which, at the end of the day, is based on her dignity (see § 28)?
On top of all this, by placing the emphasis on the need to provide for a “conscience” clause that gives the surrogate the right to go back on her initial decision, the Ruling disregards the other interests that are involved here and also warrant consideration – to begin with, those of the beneficiaries, who only agreed to enter into the contract on the basis that the surrogate renounced maternity. But above all else, the Ruling disregards the best interests – and along with them, the dignity – of the child who is thus conceived in a situation in which who his/her parents are going to be is actually not defined.
9. The truth is that making the surrogate’s consent legally revocable throughout the entire gestational surrogacy process, in this model whose definition includes “handing over the child” under the terms of Article 8(1), would not do away with – rather, it would render even more evident – the main constitutional obstacle to making it law. That obstacle is the fact that pregnancy is seen as a service with an obligation in terms of results that potentially enhances the “claim to the other” in a dispute between adults about who possesses the “right to the child” whose origins lie in a procreational process which functionalises the new-born in terms of the way he/she comes into the world. Underestimating the relational dimension of human dignity, precisely in the field that involves the most fragile human beings, the law allows a child to be conceived in order to be handed over. At the end of the day, the altruism that can be acknowledged to exist in the sacrifice of gestating a child for someone else does not negate the donation of another human being.
The most vulnerable of all the subjects is always the child, especially before he/she is born – a time when his/her recognition as a human being and his/her protection depend entirely on the will of adults.
This is why the principle of the best interests of the child cannot be separated from the need to respect human dignity, which implies that the child must never be treated as a means of satisfying other people’s desires. This is especially true if the solution that is found cannot be seen – even from the scientific point of view – as free of doubts as to the ways in which it may harm the child’s well-being and development.
These are the reasons why I voted for the unconstitutionality of Article 8, LPMA, as a whole – something that would have entailed the consequential unconstitutionality of all the norms regarding gestational surrogacy contained in that Law.
10. Finally, I am not convinced that the scope of the Court’s review of Article 20(3), LPMA, fully matches the petitioners’ request.
The Ruling considers that the petitioners restrict their request to the dimension of the norm which concerns the dispensation from the requirement for an automatic official investigation of paternity. As such, and despite “bearing in mind the fact that Article 6(1) of the same legislative act is currently in full force” – a precept which, as the Ruling also notes, “is capable of raising questions of unconstitutionality linked to the possibility of creating single-parent families” (§ 81), the Court did not consider the norm contained in Article 6, because the reference to this article was not included in the request.
I, however, believe that when, in their final remarks, they ask for the review of the “the part of the new wording of Article 20(3) of the MAP Law which dispenses with the automatic official investigation of paternity when only the consent of the person subjected to MAP was required” (quoted in § 81, underlining added), the petitioners did not place any relevant restriction on the consideration by the Court of the norm which results from that precept. The truth is that Article 20(3), LPMA, establishes that maternity be determined to pertain to the woman who has used a MAP technique on an individual basis, while dispensing the public authorities from automatically investigating the identity of the unknown father. This is its useful normative content, and it is precisely that content which the petitioners question: the determination of maternity with dispensation of the automatic investigation of the biological fatherhood, which thus remains unknown – a solution which expresses a “change in the paradigm regarding the use of MAP techniques” that entails “centring MAP around the woman and just one parent – which means that the need for greater attention to the rights of the child who is going to be born remains unprovided for” (pp. 6 and 7 of the request; underlining added).
I therefore think that the Ruling should have analysed the questions of unconstitutionality linked to the possibility of the creation of single-parent families, which the Court itself pointed to in §§ 36 and 81.
In this respect, it is also appropriate to note that in Ruling no. 101/2009, the Constitutional Court pronounced itself in a normative context that was completely different to the current one, when heterologous MAP was not available to female couples or single women, whatever the medical reasons. The issue then was solely that of providing a medical response to a problem of infertility, and thus a strict application of procreational techniques limited to the therapeutic function of medicine. Today, MAP techniques (with no male partner) can also be used outside the context of the medical treatment of infertility with pathological origins, and have come to include another – this time, social – purpose, thereby implying the institutionalisation and public promotion of single parenthood and dual motherhood. The normative framework for this reality and its implications were not taken into account (because that reality didn’t exist then) in Ruling no. 101/2009, which means that the grounds for the Court’s decision on that occasion cannot be transposed to the present regime without further consideration. In the present Ruling, the Constitutional Court has thus fallen short in terms of the way in which it weighed up this question.
Maria de Fátima Mata-Mouros
DISSENTING OPINION
1. I respectfully dissent from the finding included in paragraph (f) of the decision – that the section of Article 8(2) of Law no. 32/2006 of 26 July 2006 (hereinafter referred to by the initials “LPMA”) which requires that gestational surrogacy agreements be gratuitous if they are to be lawful and enforceable is not unconstitutional. It follows that I disagree with the finding that there is no unconstitutionality in Article 8(5) of the same Law – a provision which proscribes compensation for the services provided by the surrogate. Furthermore, and as a corollary of the foregoing, I consider that the Court should have declared the criminalisation of the entry into and promotion of commercial surrogacy laid down in Article 39(1), (2) and (6) to be unconstitutional.
I also disagree with the finding of unconstitutionality expressed in paragraph (b) of the Decision, with regard to the section of Article 8(8), LPMA, which, taken in conjunction with Article 14(5) of the same Law, denies the surrogate the power to revoke her consent up until the moment at which the child is handed over to the beneficiaries. I therefore disagree with the finding of unconstitutionality expressed in paragraph (c) of the Decision, with regard to the norm contained in Article 8(7) of the same Law, which establishes without exceptions (on condition that the surrogacy complies with the law) that the beneficiaries of the gestational surrogacy are deemed to be the parents of the child to whom the surrogate gives birth.
As the above propositions convey, my disagreement with the Ruling is substantial. As I will seek to explain, far-reaching and fundamental reasons set me apart from the majority position. This should not, however, obscure the fact that the unconstitutionalities of the current regime declared in paragraphs (a) and (d) of the Decision – which I endorse without reservation, and in relation to which there is unanimity among the thirteen Justices of the Constitutional Court – would suffice to deprive this Law of any practical effect, which is to say to preclude individuals from entering into gestational surrogacy transactions along the lines set out in Article 8, LPMA. It is very much worth emphasising this point – that our differences of opinion, which are quite natural in a matter as complex, controversial and delicate as the one before us, do not divide us with regard to that decisive conclusion.
A) The Ban on Commercial Surrogacy
2. The Court derives three basic implications from its measurement of the “Portuguese gestational surrogacy model” against the principle of human dignity in general – the primary grounds on which the petitioners rest their argument that the whole of the regime set out in Article 8, LPMA, is unconstitutional – and the dignity of the surrogate in particular. First, that although gestational surrogacy is not an object of fundamental rights, it possesses “positive constitutional relevance” in the light of the interests it serves. Second, the legal recognition of gestational surrogacy as a means of overcoming the female beneficiary’s natural inability to conceive a child is a legislative choice – one that is definitely not imposed, but is tolerated, and perhaps even commended, by the Constitution of the Portuguese Republic (CRP). Third, that the fact that the transaction must be gratuitous is an essential guarantee of the surrogate’s liberty and an assurance that her dignity is respected. This in turn means that the “Portuguese gestational surrogacy model” – whose essential elements are the prohibition of genetic surrogacy, the requirement to use gametes from at least one of the beneficiaries, the subsidiary nature of the subrogated gestation (permissible only when the female beneficiary is not naturally able or not in a position because of her health to become pregnant or carry a pregnancy to its term), and the requirement that no profit be derived from the transaction – is compatible with the protection which the Constitution affords to the surrogate’s dignity.
I do not endorse any of these claims. First of all, I take the view that gestational surrogacy is indeed an object of fundamental rights: the beneficiaries’ freedom to procreate and to form a family [Article 36(1), CRP] and the general freedom of action included in the surrogate’s right to the free development of her personality [Article 26(1), CRP]. Secondly, I consider that inasmuch as there are no legitimate constitutional reasons for restricting these fundamental rights by means of a ban on gestational surrogacy, the Constitution requires its recognition by the legislature. Thirdly, I reject the idea that the gratuitous nature of the transaction is a guarantee of the surrogate’s freedom or dignity; on the contrary, I am of the view that it unjustifiably curtails the fundamental rights exercised by entering into and executing commercial surrogacy agreements. For all of the above reasons, my opinion is that one of the core tenets of the “Portuguese model” – the requirement that the arrangement be gratuitous – is reproachable on constitutional grounds. It goes without saying that the target of my criticism is not the legal recognition of gratuitous agreements, but the fact that the Law prohibits (and indeed goes so far as to criminalise) commercial surrogacy. The Law – so it seems to me – falls short of the constitutional requirements.
3. My disagreement with the Decision begins with the way in which I think it characterises the principle of human dignity: a constitutional value a normative, objective, absolute and autonomous nature. I believe the first three of these predicates – normativity, objectivity and unconditionality – are indeed correct. But I cannot say the same of the last one – autonomy – at least as the Court appears to see it – i.e. as the property whereby human dignity can operate as an immediate and discrete basis for a finding of unconstitutionality.
As the Decision states, the principle of the dignity of the human person is a norm, with its own legal effects, and not a mere proclamation with symbolic value or a rhetorical function (in this sense, see Ruling no. 105/90); hence its normative nature. At the same time, it is an objective principle: that each person possesses intrinsic and not instrumental value, and that his or her existence is an end in itself and not a means to someone else’s ends; dignity here is “not a specific fundamental right which could serve as the basis for arguing subjective legal positions” (Ruling no. 101/2009) – rather it is the foundation of all the fundamental rights and basic principles of constitutionalism. It is also an absolute principle: the dignity of the person – of each of the individuals who belong to the class of persons – is not a value that can be weighed, alongside other values, on the scales of justice; it is the presupposition, foundation, metric and absolute limit of balancing as the paradigm of practical reasoning. This is why it is an inviolable norm, in the sense that its violation is necessarily intolerable.
I concur with the Decision in relation to all this. Where I cannot go along with the majority is in the understanding that the principle of human dignity is an autonomous value that can operate as an immediate and discrete standard for assessing the validity of laws and other acts undertaken with public authority. Nor does it seem to me that such an understanding is reflected in the Constitutional Court’s case law – namely in the statement made in Ruling no. 101/2009, that the principle of human dignity can “be used when it comes to implementing and delimiting the content of fundamental rights that are enshrined in the Constitution, or to reveal certain unwritten fundamental rights”. On the contrary, these words suggest that the principle of human dignity is applicable in conjunction with more specific and determinate constitutional standards, particularly those embodying fundamental rights; that is to say that human dignity operates either at the level of interpreting and implementing rights that are expressly laid down, or as the moral source of other, unwritten rights.
In fact, applying the dignity principle as an absolute, autonomous norm – in the way the Ruling does – leads to absurd outcomes in important cases. There is a broad consensus that one of the projections of the intrinsic value of persons is the prohibition of instrumentalisation, as expressed in Günter Dürig’s “object formula”, to which, following long-standing and reiterated case law, the Decision attributes an “important heuristic value”. In Dürig’s words, “human dignity is violated when a concrete human being is degraded into an object, to a simple means, to something fungible” – i.e. to a simple means of achieving purposes that are extraneous to the person in question. However, not every form of a person’s instrumentalisation by public authority violates his or her dignity. To give a mundane example: by criminalising the failure to render assistance “in cases of serious need, namely those caused by a disaster, accident, public calamity or situation of shared danger that endangers another person’s life, physical integrity or liberty” [Article 200(1), Criminal Code (CP)], the law unequivocally treats its addressees, without their consent, as means in the service of someone else’s interests (interests which are, in principle, totally extraneous to them). Now if the prohibition of instrumentalisation were to be applied to this case, as an absolute, autonomous norm, I would be led to conclude – and that conclusion is plainly absurd – that what we have here is a violation, and by necessity an intolerable one, of the dignity of the human person.
In order to avoid aporias of this kind – and I could give many more examples – the prohibition of instrumentalisation expressed via the “object formula” must be seen, not as a directly applicable standard, but rather as a deontological restriction built into the principle of proportionality. It is worth noting that proportionality in the narrow sense of the term is basically a consequentialist structure: the relevant interests are, as it were, placed on a set of scales that determines the relative weight of the sacrifice and the advantage. If the conflict is between human lives, for example, the outcome of balancing, seen in these terms, comes down to simple accounting – e.g. it is permissible to sacrifice the life of one healthy person in order to harvest the organs that two or more people need in order to survive, simply because however valuable it may be, one human life necessarily weighs less in the balance than two or more human lives. Yet this outcome is repugnant – manifestly incompatible with the dignity of the person whose life is sacrificed – and reveals the need to place restrictions on the simple assessment of the consequences.
This is precisely the main legal function of the prohibition of instrumentalisation: the negative value of a restriction of a fundamental right is not limited to the seriousness of the interference with the corresponding interest – the consequentialist variable that is determined when the effects of a course of action are weighed up – but also includes the content of the restrictive measure – whether the sacrifice of a personal interest is essential or circumstantial. It is the importance of this deontological variable – the intrinsically negative value of using persons as instruments, regardless of the consequences – which accounts for the common intuition that, whatever the final judgement one arrives at, there is a morally significant difference between on the one hand switching a trolley onto a different track in order to avoid the death of five people, even if it means sacrificing the life of one person on the track the trolley is switched onto, and on the other throwing a person onto the track in order to make the trolley slow down and eventually stop. Simplifying the question to the utmost, the difference is that in the first case a life is sacrificed as a consequence of the other lives being saved, whereas in the second case the life that is sacrificed is the instrument used to save the others.
In situations in which the holder of the restricted right is treated like a means to an end, the intensity of the restriction substantially exceeds the seriousness of the interference with the relevant personal interest, so the restriction can only be tolerated when it is relatively negligible. This is the case of the criminalisation of the failure to provide assistance, where, when the sacrifice of the general freedom of action is weighed against the interests placed on the other side of the scales, its relative weight is found to be so slight that not even the unequivocal instrumentalisation of the person who is placed under the duty justifies striking down the provision. Despite the fact that they are instrumentalised, because once all the relevant deontological and consequentialist considerations have been taken into account, the legislative measure does not exceed the limits of proportionality. Notwithstanding the absolute value of human dignity, the prohibition of instrumentalisation is just one of its normative projections – alongside, say, the recognition of fundamental rights and the duty to balance all the values that are relevant in the circumstances – which must be duly articulated with the others. In short, that which is required by respect for the dignity of the person is not a prius captured in some operative formula like Dürig’s, but an all-things-considered judgement which balances the reasons that matter – all of those that matter, but also only those that matter – from the standpoint of a commitment to the unconditional value of each and every person.
4. Be this as it may, the prohibition of instrumentalisation expressed by means of the “object formula” is not a useful starting point from which to address the central issue posed is this case: whether the dignity principle warrants the restriction of a capable person’s liberty. The question here is whether the constitutional prohibition of instrumentalisation of the person also applies to self-instrumentalisation, in such a way that one can say that the public authority of a political community based on the dignity of persons is not only under a duty to refrain from instrumentalising people and to protect them from instrumentalisation by third parties, but also under a duty to protect them against the instrumentalisation of themselves by themselves.
In order to answer this question, it is necessary to take one firm and coherent position in relation to the interpretation of an essentially contested constitutional concept – precisely that of the dignity of the human person. It is not enough to say that no one can be treated like an object, that the human person possesses intrinsic value, that she has the capacity for self-determination, or that – as the Decision puts it − “one cannot exclude the relevance of the subject’s free, informed consent with regard to actions or situations which are imposed on her, to which she has not consented and which would harm her dignity”. These assertions are both important and correct, but they are located in an ethereal realm, removed from the controversy about the relationship between personal dignity and individual freedom with which the Court was directly confronted by the particular nature of the question before it. Explicitly undertaking the task of articulating a conception of human dignity – doubtlessly a difficult and risky one – is the fair price of a principled and transparent constitutional case law through which the Court subjects itself to the scrutiny of an “open society of interpreters”.
Two primary and divergent paths open up once that task is undertaken.
One possible interpretation of the constitutional concept of the dignity of the human person is perfectionist or teleological. Perfectionism takes the view that a person’s dignity lies in the value of her existential projects or choices, in the fact that the latter develop her capacities as a person and promote excellence, in its most varied forms, in her life. Fundamental rights – and especially the rights linked to liberty – are both rooted in and limited by a more or less open, plural ideal of personal perfection, such that the dignity principle prima facie authorises (perhaps even obliges) public authority to restrict individual freedom whenever its exercise undermines the agent’s dignity.
Albeit implicitly, I believe the Decision embraces this perfectionist understanding of human dignity. In response to the objection that the surrogate’s dignity is “captured by freedom” in gestational surrogacy, the Court emphasises the fact that the transaction must be gratuitous and says that the “gestational surrogate acts out a life project which is her own and in which she expresses her own personality. […] Her pregnancy and the subsequent childbirth are both instrument or means and a necessary and sufficient condition for an act of donation or giving which raises her up in her own eyes and according to her own ethical and moral standards; and which also elevates her in the eyes of the people she helps. Now the fact is that this elevation of the gestational surrogate in her own eyes, in those of the beneficiaries, and perhaps in those of the circle of people closest to her, is the opposite of her degradation.” Despite its ostensive openness − “in her own eyes and according to her own ethical and moral standards” – this justification proceeds from the notion that it is the ethical value or ethical excellence of the choice made by the surrogate, who sacrifices personal interests in order to respond to the beneficiaries’ desire to be parents, without asking for anything in return, that constitutes the decisive reason for supposing that her dignity is not violated by the arrangement.
It is not so much that I disagree that this is typically the case in gratuitous gestational surrogacy. The problem is that the basic reason – the ethical value of the surrogate’s choice – is irrelevant to the decision as to whether or not her choice must be respected. It is irrelevant because – it seems to me – the Court should have taken the alternative path of a liberal or deontological conception of human dignity as a legal principle, one according to which the dignity of an individual cannot be invoked to restrict her freedom, demanding instead respect for her choices whatever their content or motivation.
Two arguments vindicate – decisively in my view – this liberal conception.
Firstly, the argument of interiority. If the intrinsic value of the person lies (and this appears to be relatively consensual within the context of the constitutional debate) in her unique capacity for self-determination – to recognise and respond to values – then personal dignity presupposes freedom of action. It is not possible to coerce a person to love a deity, to understand the principles of logic and the laws of physics, to act from justice and charity or to admire the beauty of a landscape and the genius of a work of art. While there can be no doubt that only people are capable of these things, exercising that distinctive personal capacity is always and necessarily an act of freedom. In its different forms, the restriction of liberty can secure the conformity of individual behaviour with the relevant standards and values, but – due to the nature of a cause or incentive that is external to the agent – it cannot secure the adherence of the individual to such standards and values. It is true that freedom of choice does not contain in itself any guarantee that a person will respect herself in the conduct of her life, that she will not degrade or objectify herself. But it is a necessary condition for that respect. In reality, restricting individual freedom for the sake of the agent’s personal dignity is a contradiction in terms, because it deprives the subject of the capacity for self-determination on which the recognition of her eminent dignity is rooted. In other words, given that the legal order cannot ensure that persons live their lives with dignity, human dignity as a constitutional principle entails respect for individual freedom.
Secondly, the argument of pluralism. To respect the person in her capacity for self-determination is to respect not just her freedom of action, but also the standards and values that guide and inspire her conduct – it is to respect her freedom of belief. In the face of ineliminable and reasonable pluralism of religious, philosophical and ethical beliefs, a constitutional order based on the principle of human dignity demands of a public authority which claims the allegiance of its addressees and the right to enforce its commands that it acts upon grounds which all the members of the polity can accept as reasonable, notwithstanding their multiple and rival worldviews. Yet virtually none of the ideals of personal excellence and beliefs about human nature that inform a perfectionist interpretation of dignity are part of this common stock of public reason, and they therefore cannot be accepted as valid justifications for common laws – namely laws that restrict the general freedom of action on account of a supposed duty of the state to protect the dignity of the agent herself.
5. Gestational surrogacy is a relationship with three focal points: the beneficiaries, the surrogate, and the child.
Where the beneficiaries are concerned, it is hard to argue that surrogacy is not an exercise of the freedom to procreate and thus the freedom to form a family, especially considering that the law only allows this arrangement in cases in which the female beneficiary cannot procreate. It is debatable whether one can talk about procreation in cases in which the male beneficiary has not contributed any gametes. But if we take into account that on the one hand the law requires the use of gametes from at least one of the beneficiaries, and that on the other it is widely agreed that the right to form a family includes non-biological filiation, the fact is that the question lacks any practical significance.
Moreover, I cannot subscribe to the view that the existence of a “fundamental right to procreation by means of gestational surrogacy – which in any case the state would never be in a position to fulfil directly, given the fact that the voluntary intervention of a woman who is willing to undergo a pregnancy on the beneficiaries’ behalf and hand the child over after she is born is an essential element of the process” – is unthinkable. The right in question is clearly not a right to the provision of a service by the state, much less a right correlative to a state obligation to achieve a specific result. What is at stake here is a fundamental freedom which, prima facie, renders unconstitutional the creation of a legal duty not to try to procreate by means of gestational surrogacy. It is clear that the freedom to procreate does not include any guarantee that the wish to have a child will be fulfilled, just as freedom of artistic creation does not entail that an individual’s desire to publish a novel will be realised and freedom of expression does not require that the desire of a speaker to persuade the audience of his sermon will be satisfied. The most one can say is that technical (MAP) and social (surrogacy) solutions expand the universe of factual possibilities that this particular desire will be fulfilled, and only weighty constitutional reasons can justify restricting the use of those means, above all when the female beneficiary is not naturally able or not in a position because of her health to become pregnant or carry a pregnancy to its term.
From the surrogate’s point of view, the entry into and execution of gestational surrogacy agreements corresponds to the exercise of the right to the free development of personality, notably her general freedom of action. Is this also true in the case of commercial surrogacy? In the Decision, the Court says that the requirement that the surrogacy be gratuitous not only directly protects dignity – a function it justifies in essentially perfectionist terms – but also serves as a “guarantee that the surrogate’s actions are truly free and as such an expression of her autonomy”. Yet it seems to me that the assumption underlying this view – that a (presumably) altruistic surrogate is generally subject to less constraint than one who is motivated by financial gain – is, upon inspection, an odd one. Albeit their organisational and functional logics are distinct, the domain in which the vast majority of free gestational surrogacy cases will foreseeably occur – the family – is not one in which the individual is any less dependent and subject to compulsion than the domain of strictly material or commercial interactions. Moreover, the state has always been reluctant to interfere in family life – historically, in deference to patriarchal authority, and nowadays primarily for valuable reasons of privacy.
At the same time, the fact that the surrogate’s motivations in commercial transactions are generally not linked to her “moral elevation” in her own and the beneficiaries’ eyes, but rather to the compensation due in return for making her body available and limiting her freedom on behalf of the latter, cannot serve as grounds for any restriction on her liberty within the framework of a liberal interpretation of the principle of human dignity. In fact, the supposed arguments in favour of the ban on commercial surrogacy appear to me to be so abstract and exaggerated that they would entail the proscription of wage labour (“the exploitation of man by man”), and possibly all and any commutative transaction. None of this serves to deny that, in a domain as delicate as this one, protective measures which ensure the surrogate’s effective liberty are warranted. In the current regime, this function is performed not only by the CNPMA’s control and monitoring powers, but also by Article 8(6), LPMA, which bans transactions between individuals in a relationship of economic subordination – a norm whose conformity with the Constitution I do not dispute. And if commercial agreements were to be permitted and a proper surrogacy market developed, it would be natural for the law to step in and intensify the regulation of such transactions.
Turning to the position of the child, I endorse all the arguments set out in the Decision. The child is no more “objectified” or “instrumentalised” in gestational surrogacy than she is in procreation by means of sexual relations, whenever the couple intends to conceive a child. And while the parents’ desire to have a child involves an inevitable instrumentalisation of procreation, one cannot confuse this with the instrumentalisation of the actual person who is conceived thereby, whose dignity and rights are upheld like those of any person. Indeed, as the Court itself notes in the Decision, invoking the child’s interests and dignity as an argument against gestational surrogacy is perfectly absurd. In a regime such as ours, where access is restricted to situations of natural incapacity or lack of the health needed to carry a pregnancy to its term, a person born by means of gestational surrogacy could never have existed if that form of procreation were prohibited. In effect, it would be a performative contradiction for that person to assert that their dignity was offended or that their interests as a child were sacrificed by the fact that they were conceived in the only way in which their existence was possible.
6. For the reasons set out above, I believe that the legal recognition of gestational surrogacy is not only constitutionally admissible, but is constitutionally required in light of the rights to form a family and to the free development of personality. I am also of the view that, for the very same reasons, the ban on commercial transactions, which is one of the essential elements of the “Portuguese model” laid down in Article 8, LPMA, is unconstitutional.
I nevertheless cannot fail to say a few words in defence of my position against an objection that is as obvious as it is pertinent: that the decision to ban commercial gestational surrogacy falls within the scope of the legislature’s political discretion or margin of appreciation.
Legislative discretion is based on the democratic authority of the legislature. When a legal regime is the outcome of the balancing of a variety of legitimate reasons pulling in different directions, notably rights and interests endowed with constitutional status, and all the more so when those regimes are based on complex judgements involving empirical prognoses, respect for the democratic principle requires broad judicial deference towards the legislature. Judicial review in these cases is essentially confined to a “negative” test of “rational basis”, except when what is at stake are “suspect classifications” that debase the law’s democratic credentials, thus vindicating stricter judicial scrutiny.
And yet the democratic principle – like all the basic principles of constitutionalism – is also based on human dignity. A political community of free and equal persons with different convictions about justice and the common good is bound to the principle that public authority must rest on democratic grounds. As regular addressees of the laws and subjects of the power to apply and execute them, citizens must be treated as equals in the process of generating a collective will. Political equality – the idea that each citizen’s judgement weighs as much as that of any other citizen in the formation of a common decision – requires the adoption of universal suffrage and the majority rule.
However, according to the very human dignity on which it is based, the common will generated by majority rule is only legitimate if it remains confined to the domain in which collective action is indispensable because the issues at stake are not solely the affair of the individual. In the domain in which only the individual, or only consenting individuals with full capacity, is or are concerned, the same key principle of respect for the person requires that individual freedom prevail over the will of the majority. One of the tasks entrusted to a constitutional court is thus to ensure that the democratic legislature does not encroach upon this sphere of individual self-governance. Now, given the absence of any empirical or rational evidence that surrogacy arrangements have significant repercussions in the sphere of third parties, commercial surrogacy appears to me to fall within the latter domain. I cannot think of any good public-reason-based argument that would warrant the restriction of the fundamental liberties that are at stake here, not even one that would require the legislature to proceed cautiously and opt for legal recognition in stages.
True, all of this is premised on a liberal or deontological interpretation of the principle of human dignity, and on a plethora of controversial judgements and deductions. But I am afraid that this is inevitable. The constitutional order within which both the democratic legislature and the constitutional judge find themselves does not interpret itself, nor does it reveal itself in the minds of its protagonists. It must be interpreted by them, with the inherent risks and uncertainties; and the final interpreter, which must defer to the legislature to a greater or lesser degree – a deference that always already implies an interpretation of the democratic principle – is necessarily the Constitutional Court. The only legitimate check on this ultimate authority is the critical scrutiny of reasoned decisions by the general public.
B) Revocation of the Surrogate’s Consent
7. The Court deems it unconstitutional for the surrogate to be unable to revoke her consent once the therapeutic medically assisted reproduction processes have begun – as laid down in Article 8(8), LPMA, taken in conjunction with Article 14 of the same Law. According to the Decision, this limitation on the power to revoke means that the surrogate cannot release herself from the main obligations she has undertaken in relation to the beneficiaries – that of carrying the child to term and that of handing him or her over after the birth – in cases in which she comes to “regret” the initial decision to waive her rights to physical integrity, general freedom of action and her right to form a family.
In the event that this regret concerns the commitment to conceive and gestate a child, the Court supposes that the impossibility of revoking her consent conditions the surrogate’s ability to have an abortion under the terms provided for by law, whereupon she would be placed in the position of having to undergo a pregnancy and childbirth she did not want. The Court concludes that this entails an excessive limitation of the surrogate’s right to the free development of her personality.
In cases in which it involves the commitment to hand over the child, the inability to revoke means that the surrogate cannot go back on the decision to renounce the maternal powers and duties with regard to the child to whom she has given birth, even if she has developed a “parental project” of her own in relation to the child in the meantime. The Court argues that this constitutes an excessive breach of her rights to form a family and to the free development of her personality. In the latter case, the Court also takes the view that the competition between the beneficiaries and the surrogate’s “parental projects” should be resolved, not according to a legal criterion like the one set out in Article 8(7), LPMA – whereby the beneficiaries are always deemed to be the child’s parents − but in accordance with a “case-by-case assessment”, presumably of a judicial nature, guided by the “best interests of the child” standard.
8. For the most part, I endorse the major premise of the finding of unconstitutionality.
The Decision states that “(…) gestation is a complex, dynamic and unique process in which a relationship is formed between the pregnant woman and the foetus that gradually develops within her. This is why one can ask how far a consent which is given even before the pregnancy (…) is truly informed about the entirety of that process. (…) if the surrogate no longer wants to carry on with the gestational surrogacy process as outlined in the applicable contract, it also ceases to be possible to consider that her participation in that process corresponds to the exercise of her right to the development of her personality.”
In effect, it seems to me that the same freedom which serves as the grounds for the surrogate’s power to enter into gestational surrogacy agreements requires that she should not remain tied to a pregnancy that has become unbearable for her. The law must vest a “right of regret” in the surrogate. My disagreement with the Ruling mainly involves the minor premises underpinning the finding of unconstitutionality, which concern the interpretation of the legal regime with regard to the questions of the voluntary termination of the pregnancy and the establishment of maternity.
On the one hand, I do not believe that in its own right the formal impossibility of revoking her consent conditions the surrogate’s ability to have an abortion under the terms provided for by law. The fact is that under Article 8(10), LPMA, the contract between the parties “shall obligatorily set out, in conformity with the current legislation, the provisions to be fulfilled in cases in which (…) there is a voluntary termination of the pregnancy.” This provision does not require that the contract determine the conditions which must be fulfilled for an abortion to be permitted, but rather those which must be followed in the event of an abortion in conformity with the current legislation. This is not about determining whether, or under what conditions, the surrogate can end the pregnancy – a subject that is regulated in Article 142, CP – but about the consequences of an abortion for the legal relationship formed by the surrogacy agreement. The surrogate can thus tacitly revoke the consent she gave if she chooses to terminate the pregnancy.
It is clear that, as the Court points out in the Decision, the contractual determination of those consequences can indirectly condition the possibility of an abortion – e.g. by means of penalty clauses or by referring the matter to the general rules of private law governing the failure to fulfil obligations – in such a way that they may reach a point at which the surrogate’s freedom is intolerably limited. Yet this entails the unconstitutionality, not of the solution set out in Article 8(8), LPMA, but solely of the norm contained in the section of paragraph (10) which directly concerns the issue in question here.
On the other hand, and notwithstanding the text of Article 8(1), LPMA, I do not believe that when she enters into the agreement, the surrogate waives a supposedly general right under the law [Article 1796(1), Civil Code (CC)] to be regarded as the mother of the child who is then born. Maternity cannot be waived at will, as if such a power were a manifestation – as the Decision puts it − of a “negative freedom to form a family”. In the case of procreation by means of sexual relations, a woman who gives birth is not allowed to refuse the status of mother. Less still does the law conceive the possibility of renouncing maternity in advance. What Article 8(7), LPMA, establishes is a legal criterion for parenthood in the peculiar case of lawful gestational surrogacy, based on the fact that the legislature has attached special weight to the beneficiaries’ claim to be regarded as the child’s parents.
We must take into account that the legal regime laid down in Article 8, LPMA, establishes on the one hand that the surrogate cannot be, and at least one of the beneficiaries must be, the child’s progenitor, and on the other that surrogacy agreements are permissible only if the female beneficiary is not naturally able or not in a position because of her health to become pregnant or carry a pregnancy to its term. In the light of this, it is hardly surprising that the legislature has taken the view that, even in cases in which, during the gestation and up until the moment at which she hands the child over, the surrogate expresses the wish to be regarded as the child’s mother, prevalence must be attached to the beneficiaries’ parental project. One must at least acknowledge that this is a reasonable solution that merits deference on the part of the Constitutional Court.
9. Finally, I cannot grasp either the logical consistency or the substantive reasonableness of invoking the best interests of the child as the standard for determining maternity in situations in which there are “competing parental projects”.
The inconsistency lies in the fact that, at the end of the day, the suggested “case-by-case assessment” would defeat the point of the surrogate’s “right of regret” – and thereby violate her fundamental rights to (not) form a family and to the free development of her personality. For someone who believes that at the moment at which she enters into the agreement, the surrogate waives her baseline right to be regarded as the child’s mother, I cannot see that it makes sense to argue that revoking the consent should not have the immediate effect of ascribing maternity to the surrogate, but rather that of making it necessary for a court to resolve the conflict between the wishes of the surrogate and the beneficiaries. There are two mutually exclusive possibilities: either the surrogate’s maternity is the baseline that is modified by the surrogacy agreement – in which case revocation of consent should automatically restore the starting point; or it is an autonomous criterion for maternity within the peculiar context of gestational surrogacy – in which case the issue is not one of revocation of consent, but rather that of which of the rival claims to motherhood is stronger in that peculiar context.
To my mind, the unreasonableness lies in the rather odd notion that opening the way to a court dispute between the protagonists of competing parental projects serves the child’s best interests. I am startled by the idea that motherhood should be established by means of a judicial “case-by case assessment” instead of by statutory criteria. More importantly still, I wonder what the criterion for paternity would be in cases in which the court rules that it would be in the child’s best interests to award maternity to the surrogate. The surrogate’s husband, when she is married? The male beneficiary, when he is the progenitor? The male beneficiary, even when he is not the progenitor? A third party who comes forward with an interesting “parental project”? It seems to me that the complexity and unpredictability involved in establishing parenthood within the context of a judicial assessment does more harm to the interest of any child born by means of gestational surrogacy than the criterion – objective, determinate and reasonable – set out in Article 8(7), LPMA.
As a matter of fact, I cannot think of any solution more harmful to the child than that one.
Gonçalo de Almeida Ribeiro
DISSENTING OPINION
A) Norms contained in Article 8 (“Gestational surrogacy”) of Law no. 32/2006 of 26 July 2006 (with the wording given to it by Law no. 25/2016 of 22 August 2016)
1. I partly dissent from the findings of unconstitutionality in relation to the norms contained in Article 8 of Law no. 32/2006 of 26 July 2006 (with the text given to it by Law no. 25/2016 of 22 August 2016), as set out in paragraphs (a) to (d) of the Decision. My dissent concerns the norms encompassed by the findings of unconstitutionality, the norm covered by the finding of consequential unconstitutionality [see Chapter III of the Ruling: Decision, paragraphs (a), (b) and (d), and paragraph (c) respectively], and the grounds for all those findings. My dissent is based on my understanding that all the norms included in Article 8 should have been found to be unconstitutional, first and foremost because they violate the principle of the dignity of the human person enshrined in Article 1 of the Constitution of the Portuguese Republic.
For this reason, I do not concur with the grounds for and the conclusions reached in Point B.4 of the Ruling (The Portuguese gestational surrogacy model in the light of the dignity of the human person, §§ 21 to 33) – in the negative sense – with regard to the problem of whether gestational surrogacy is compatible in principle with the value of the dignity of the human person, especially when it comes to the question of the dignity of the child born following the use of gestational surrogacy (Grounds II B.4.2 §§ 31 to 33).
For the same reason, nor do I concur with the grounds for and the conclusions reached in Point B.5 of the Ruling (Other questions of unconstitutionality raised by the Portuguese gestational surrogacy model, §§ 34 to 37), because they appear unnecessary in the light of my understanding of the matter, as set out below, which considers the question of unconstitutionality before those other questions are reached – upstream from them, as it were.
The majority nonetheless considered both the (preliminary) question of whether the Portuguese gestational surrogacy model is unconstitutional in principle (see II, B.5 § 34, and B.6 § 38.) – its view is that permitting gestational surrogacy on an exceptional basis, as laid down in Article 8, LPMA, represents a choice that is available to the legislator (re the surrogate, see B.4.1 § 27 in fine; re the duty to protect childhood, see B.5 § 35 in fine) – and the other questions of constitutionality raised by the Portuguese gestational surrogacy model (see II B.5 §§ 34-35 and 36-37) . It consequently focused the analysis in the Ruling on the Questions of unconstitutionality raised by certain aspects of the regime governing lawful gestational surrogacy (see B.6 §§ 38-53). My understanding [as mentioned above and set out in more detail in point (2) below)] – which, because it rests on the principle of the dignity of the human person, is situated prior to or upstream from those questions with regard to certain aspects of the regime – does not preclude me from concurring – indeed, it gives me all the more reason to do so – with both the other constitutional parameters on which the finding of unconstitutionality in relation to the norms declared unconstitutional in the aforesaid paragraphs (a) to (d) of the Decision, and the essence of the grounds for that finding. This is because they add to the parameter I deem to be of foremost importance, and I therefore concur with the majority decision to declare the unconstitutionality, including the consequential unconstitutionality, of those specific Article 8 norms that establish certain aspects of the gestational surrogacy regime [norms included in paragraphs (4), (10) and (11), and consequently paragraphs (2) and (3); the norm contained in paragraph (8), taken in conjunction with Article 14(5); and the norm contained in paragraph (7) (consequential unconstitutionality)].
2. Having thus seen why and to what extent I accompany the majority decision set out in the Ruling with regard to the norms that are declared unconstitutional (be it directly or as an ensuing consequence) in paragraphs (a) to d) of the Decision – and correspondingly disagreeing with the majority with regard to the norms that are found not to be unconstitutional in paragraph (f) of the Decision – it now behoves me to explain my understanding that the norms (all the norms) contained in Article 8 of Law no. 32/2006 of 26 July 2006, with the wording given to it by Law no. 25/2016 of 22 August 2016, are unconstitutional.
2.1 Following the change of paradigm regarding medically assisted procreation (hereinafter “MAP”) brought about by the amendments made to Law no. 32/2006 of 26 July 2006 (the Law governing Medically Assisted Procreation, hereinafter “LPMA”) by Article 2 of Law no. 17/2016 of 20 June 2016 – i.e. by the addition of a paragraph (3) to Article 4 and of a new interpolation in Article 6(1) – Law no. 25/2016 of 22 August 2016 changed the LPMA, (permitting and) regulating – on an exceptional basis and under certain conditions – “access to gestational surrogacy” (see Article 1, Law no. 25/2016 of 22 August 2016), which the new wording of Article 8(1) defines as “any situation in which the woman is willing to undergo a pregnancy for someone else and to surrender the child after the birth, renouncing the powers and duties pertaining to maternity”. Law no. 25/2016 of 22 August 2016 thus made (by means of its Article 2) a set of amendments to various articles of the LPMA – including Article 8, whose title was changed to “Gestational surrogacy” – which are the object of preliminary analysis in Point B.1 of the Ruling (see §§ 7-8).
Taken together, the aforementioned legal regime, which is derived from Law no. 25/2016 of 16 August 2016 and concerns “ ‘gestational surrogacy’ situations” [see Article 8(1)] – to which the LPMA also applies as a result of the provisions of its Article 2(2) (with the wording given to it by Article 2 of Law no. 25/2016 of 22 August 2016) – and the “gestational surrogacy model or concept” which the legislator sought to permit (the outlines of which are also summarised in Point B.2 of the Ruling – see § 9) mean that any “ ‘gestational surrogacy’ situation” as defined by the legislator [see Article 8(1)] necessarily involves three categories (among others that include donors, where applicable) of involved subjects or “intervening parties” in a relationship that is also by necessity partly (until the child is surrendered after his/her birth) “triangular” and entails interests which are partially convergent, but perhaps also divergent: i) the woman who is willing to undergo a pregnancy on someone else’s behalf and to hand the child over after the birth, renouncing the powers and duties pertaining to maternity (the gestational surrogate); ii) the person(s) on whose behalf the gestational surrogate undergoes a pregnancy for someone else (the beneficiaries); and also iii) the child who is born when the surrogate gives birth (the child).
Besides this, the fact that under the terms of the legal regime passed by the legislator, “any ‘gestational surrogacy’ situation” must make use of a medically assisted procreation technique – apart from anything else, because the law requires it (along with the use of gametes from at least one beneficiary), and that the gestational surrogate cannot under any circumstances be the donor of any oocyte used in the concrete process in which she takes part [Article 8(3), LPMA] – means that gestational surrogacy is clearly distinct from other MAP techniques as such. To begin with (in addition to other reasons), this is because although the techniques that are employed in the case of a “gestational surrogacy situation” are in themselves identical to those used outside such a “situation”, their ultimate purpose – to procreate and thereby conceive a new human life – transcends (unlike what happens in MAP cases outside the scope of a “gestational surrogacy situation”) the sphere of the person (the surrogate) who subjects herself to them, due to the (f)act that (in which) the child is surrendered after the birth (one element of the legal notion of gestational surrogacy) – and the correlative “renunciation” of the powers and duties pertaining to maternity [see Article 8(1), LPMA] – thereby, at the end of the whole process and according to the Law, concretely implementing a parental project belonging to someone else – i.e. the beneficiaries. As such, while the “model” instituted by the legislator makes using a MAP technique a condition sine qua non for “any” gestational surrogacy “situation”, that “situation” is distinct from the MAP situations which occur outside the framework of a gestational surrogacy “situation”, inasmuch as under the legal regime instituted by the legislator, the woman who subjects herself to the MAP techniques does not end up being the mother of the child who is then born, and the latter doesn’t end up as her son/daughter, but rather that of the beneficiaries of the gestational surrogacy “situation” – results that are derived from the core trait of the regime, whereby the legal filiation tie is expressly determined in this way by the Law [see Article 8(7), LPMA].
2.2 It is when it comes to measuring the norms contained in Article 8, LPMA – to begin with, the norm that provides for the notion of gestational surrogacy itself, which leads on to the aforementioned “triangular” relationship and to the “renunciation” as an element of that notion, taken in conjunction with the norm that requires the legal establishment of the (new) filiation tie (both maternity and paternity) in relation to the beneficiaries of the gestational surrogacy “situation” [see Article 8(1) and (7), LPMA] – against the Constitution that I believe one must call on the dimension of the principle of the dignity of the human person whereby that principle serves as a limit. This analysis leads me to the view that the norms in Article 8, LPMA, which set out both the notion and the various traits of the regime governing the gestational surrogacy “situation” which concretely implement that notion, including those regarding the entry into legal gestational surrogacy transactions and the conditions to which the latter’s validity and lawfulness are subject, are not in conformity with the Constitution.
As part of this evaluation, I am of the opinion that right from the beginning one must attach special weight to the third category of subjects involved and their interests – the (after he/she has been born) child – inasmuch as, given that he/she is in principle the weakest of the three, the norms included in the legal regime before us result in a range of uncertainties (perhaps impossible to overcome within that framework) as to his/her legal status. From a precautionary or preventive point of view, I believe that those uncertainties are incompatible with the principle of the dignity of the human person, and I will now explain the essence of the reasons why.
3. There are two central aspects of the norm that sets out the notion of gestational surrogacy [Article 8(1), LPMA] – which are implemented along with the others (including the positive and negative conditions to which the lawfulness, validity and efficacy of the respective contract are subject) in the regime contained in the various paragraphs of Article 8, especially paragraphs (2), (3) and (7) – that raise doubts as to its conformity with the Constitution, and in concrete terms with the principle of the dignity of the human person as applied to the child in the first place, even before the moment at which we must consider both the state’s duty to protect childhood once the child has been born and the importance of the child’s best interests [factors which the Ruling correctly takes into account within the framework of the analysis of the conflict between parental projects included in the question of the surrogate’s consent over the course of the whole process (see § 47), and also within that of the questions regarding the regime governing the nullity of gestational surrogacy contracts that are free of charge (see §§ 48-49)]. Those two aspects are: the “surrender of the child after birth” by the surrogate to the beneficiaries, as the “last of the contract’s essential obligations” (as referred to in § 47 of the Ruling); and the corresponding “renunciation” (to use the legal term) by the gestational surrogate of maternity-related powers and duties with regard to the child to whom she has given birth, and the correlative establishment of the filiation tie directly by law [thereby setting aside the legal rule laid down in Article 1796(1), CC, according to which filiation in relation to the mother under the general terms of the law results from the fact of the birth] – a “renunciation” that is necessarily projected into the child’s legal sphere.
Moreover, the understanding that the abovementioned norms of Article 8 are not in conformity with the Constitution must necessarily project itself onto the other norms contained in this Article, thereby leading to the same finding in relation to them (and consequently to the other LPMA norms that refer to gestational surrogacy).
3.1 The notion of “gestational surrogacy” as a “situation” regulated by the law [Article 8(1), LPMA] cannot exist in practice without the legal regime which allows it to be implemented in ways that are both lawful [particularly bearing in mind the norms contained in Article 39(3) to (5), LPMA, which impose punishments on forms of behaviour intended to implement surrogacy arrangements outside the cases provided for in Article 8(2) to (6), LPMA] and valid [in the light of the penalty of nullity applicable to any gestational surrogacy transactions that fail to respect the provisions of Article 8(1) to (11), LPMA].
That notion – as well as the “entry into gestational surrogacy transactions” (albeit only in the exceptional cases and limited forms provided for in Article 8) – in turn means the gestational surrogacy “situation” is directed towards the ultimate purpose or purposes of the conception and gestation of human life and the birth of a child, which is the object of the aforesaid obligation (due to both the notion of, and the contract which formalises, the gestational surrogacy “situation”) on the part of the gestational surrogate to surrender the child to the persons on whose behalf she underwent the surrogate pregnancy – the beneficiaries.
The mere possibility (encompassed by the legal notion of gestational surrogacy “situation”) of enshrining the “surrendering” (“delivering” in the legal sense of the term) of a new-born human being as a primary obligation of a gestational surrogacy contract (authorised and entered into before the use of MAP techniques and the birth of a child) invokes the dignity of the human person, in line with the “object formula” referred to in § 22 of the Ruling (and especially included in the final part of the third paragraph of Part II – the grounds for the decision – of Constitutional Court Ruling no. 144/2004) and goes beyond the “boundary” of the concrete degradation of the human being referred to by Dürig. This consideration of human dignity must be conjugated with a precautionary stance that is justified by the fact that we are in a domain – or to use the legal term, a “situation” – which is extremely complex and sensitive and whose (novel) main features raise questions that go well beyond the use of MAP techniques outside the gestational surrogacy framework [where the decisions in relation to the new human being are situated in the “inner” sphere of the direct female beneficiary of such techniques, or in the broader sphere of different-sex or same-sex female couples who are married or live or live in circumstances analogous to those of spouses and are the beneficiaries of those same techniques (see Article 6, LPMA)]. We must also bear in mind that when it makes provision for MAP, the Constitution itself [Article 67(2)(e)] requires that such techniques be regulated “in such a way as to safeguard the dignity of the human person” [on the admission of an “idea of prevention or precaution”, see Jorge Miranda/Rui Medeiros, Constituição Portuguesa Anotada, Tome I, 2nd ed., Coimbra, Coimbra Editora, 2010, Note to Article 67, XII, in fine, p. 1368).
It is worth noting that both the proposed draft and the scope of the final part of the aforesaid Article 67(2)(e), CRP, were the result of the work of the Ad Hoc Committee for the Revision of the Constitution (4th Revision) (CERC-IV). On the one hand, the Committee’s minutes show: that the purpose of the proposed addition of the subparagraph (submitted at the time by the Social Democratic Party) was to include in the Constitution matters which it thus far had not addressed and which, due to technological evolution, were posing new problems on the human rights level; that the proposal was also underlain by the concern to draft a generic text that would not be rendered outdated by the dynamic and ongoing evolution of its subject matter (see Series II-RC of Journal of the Assembly of the Republic no. 29 of 27/9/1996, p. 28, italics added); and that the reference to safeguarding human dignity therefore constitutes “a precondition or assumption, a condition that imposes a limit” (idem, p. 28). At the same time, the records of the discussion and voting on the proposal highlight the fact that the reference in the approved formulation of the final part of subparagraph (e) to safeguarding the dignity of the human person was derived from “the constitutional norms that make protecting human dignity an imperative requirement” [see Series II-RC of Journal of the Assembly of the Republic no. 89 of 14/5/1997, p. 65].
It is impossible not to consider this question of the dignity of the human person (and the respect owed to the latter), even if – as the majority states in the Ruling – gestational surrogacy could be seen as representing a project involving the formation of a family using MAP techniques (unfeasible without the gestational surrogate, and admissible only on an exceptional basis, in the face of weighty medical reasons that cause suffering to the female beneficiary), and strictly to that extent possesses a “positive constitutional relevance” (see § 35) – and from that perspective, the planned child constitutes an end in his/her own right and not a mere instrument with which to make that project viable (which would degrade him/her as a human being).
In addition, given the pivotal dissociation underlying the gestational surrogacy “situation”, between social and genetic (or partly genetic if, as the legal regime permits, recourse is had to a donor) parenthood and the surrogate’s biological parenthood – consummated by the establishment of the filiation tie in relation to the beneficiaries by law [see Article 8(7), LPMA] – any doubt or disagreement about the “surrender” or the correlative “renunciation” may impact the child’s legal status in that, despite the fact that that filiation tie is established by law, that doubt or disagreement can – at least temporarily – preclude the desired parental project based on that legal filiation.
Following on from this, another possible effect of any uncertainty about the establishment of the filiation tie may be an ensuing uncertainty about the political/legal tie that binds the individual to the state [in the Portuguese legal order, the ordinary legislator calls this tie nationality, while the constitutional legislator uses the term citizenship (see Article 4, CRP)]. Indeed, in addition to the differences that can be said to exist between the two concepts (see Ruling no. 106/2016 II A § 14), that uncertainty can have consequences for the aspect of the tie represented by nationality that concerns the acquisition of the person’s originary nationality [see Article 1(1)(a) (e) and (f) and (2) of the Nationality Law – Law no. 37/81 of 3 October 1981, as most recently amended by Organic Law no. 9/2015 of 29 July 2015, which republished it], in that the acquisition of Portuguese nationality by persons who are born in Portuguese territory is also dependent on the nationality of the mother or father (thereby conjugating the criteria of jus soli and jus sanguinis). These sources of uncertainty can be further enhanced by the legislator’s choice not to include any delimitation of the subjective scope of application of the legal regime set out in Article 8, LPMA, based on the country of residence and/or nationality of either the beneficiaries or the surrogate, instead simply assuming that the gestational surrogacy “situation” covered by the Article 8 norms occurs in Portugal and the planned birth in Portuguese territory. In this respect, and notwithstanding this omission in the LPMA (and in Regulatory Decree no. 6/2017) with regard to the gestational surrogacy “situation” [and even bearing in mind paragraph (a) of the Court’s Decision in the present Ruling and what it says in § 53 – i.e. that the possibility of entering into gestational surrogacy transactions is necessarily prejudiced in the Portuguese legal order until such time as the parliamentary legislator establishes a constitutionally appropriate regime for them], I cannot fail to emphasise that recital (a) of the model gestational surrogacy contract adopted by the CNPMA expressly refers to the use of MAP techniques by beneficiaries “regardless of their nationality and of their habitual place of residence, on condition that they choose a business address in Portugal which, in that case, shall expressly be included in the text of the contract”, and that its Clause 15 refers to an “Obligation to undertake in Portugal the acts involved in the execution of the gestational surrogacy contract”, fulfilment of which is an “obligatory condition” for the validity and efficacy of the contract’s future approval by the CNPMA [see Clause 15(1)], the CNPMA’s authorisation to enter into the contract, and the contract itself [see Clause 15(2)].
In addition to these possible doubts – which may arise essentially after the birth and in relation to crucial (f)acts that form part of the legal notion of gestational surrogacy itself (and thus in relation to the obligations derived from the gestational surrogacy that are included in a contract) – and their possible consequences for the child’s legal status, other doubts may arise prior to the birth. The latter concern different moments within and dimensions of the gestational surrogacy “situation”, especially during the pregnancy, which transcend (or can transcend) the strict inner sphere of the woman who has subjected herself to MAP techniques – be it with regard to the different legal grounds for a voluntary termination, be it in relation to vicissitudes and risks that are inherent in pregnancy and are capable of affecting not only the surrogate, but the (planned) child as well.
Two types of doubt that arise prior to the birth and result from the conjugation of the current legal regime set out in the LPMA with Regulatory Decree no. 6/2017 of 31 July 2017 [as well as with the model gestational surrogacy contract approved by the CNPMA under Article 3(1) of that Decree] illustrate the precarious status of the (planned) child (and his/her constitutionally protected intrauterine existence), who is conceived using MAP techniques with a view to (in the future) being “surrendered” by the surrogate to the beneficiaries.
Firstly – and also in relation to the question of the limitation, derived from the Law, on the revocability of the surrogate’s consent (see B.6.1 of the Ruling) – the possibility that, after all, the surrogate may, even before the birth, want to pursue a parental project of her own, thereby precluding (or seeking to preclude) the “surrender” and “renunciation” provided for in the Law. On the one hand, such a wish is not unrelated to the specific relationship between the surrogate and the unborn child, especially on the biological and epigenetic levels: while there can be no doubt that the Portuguese gestational surrogacy model challenged by the petitioners excludes the hypothesis of genetic surrogacy and only allows merely gestational surrogacy [see the final part of Article 8(3), LPMA], it is no less certain that – as the majority admits in the grounds for the Decision (see especially B.6.1 § 47) – the pregnant woman (the gestational surrogate) changes each embryo’s genetic expression, while in the other direction the embryo/foetus changes the pregnant woman (the gestational surrogate) forever. On the other hand, that wish cannot be dissociated from (and may perhaps be influenced by) the surrogate’s relationship with her own family (where one exists) – the possibility that the parental project she now wants to assume could also be welcomed within the context of that family.
Against this background, the norm contained in Article 8(7) (admittedly one of the essential traits of the regime) – which only seeks to prevent or impede the aforementioned possibility (because it is one of the essential traits of the regime) – does not in its own right ensure the absence of the controversy – and the corresponding (legal) uncertainty – that may arise during the pregnancy and up until the birth. The legal status of the unborn child will depend on the resolution of that controversy (at the limit, by the courts), to begin with in terms of the establishment of the filiation tie, with all its social and asset-related (material) consequences, especially with regard to the decision as to the family (or, where applicable, families) in which the child’s personal identity is also going to develop after he/she is born.
Secondly, and linked once again (but not necessarily limited to) to the possible competition between parental projects – and inasmuch as the notion of gestational surrogacy “situation”, as applied to concrete cases, implies the “entry into gestational surrogacy transactions” by means of a “written contract” of which the “handing over” of the child (and the corresponding “renunciation” of the rights and duties pertaining to maternity) is an essential (final) “obligation” – one cannot exclude (including for all the reasons mentioned above) differences of opinion as to the interpretation, or above all the execution, of the transaction [see Article 8(2), (4), (10) and (11), LPMA]. Indeed, if such differences of opinion are, on their own, a source of uncertainty because of the objective danger they entail with regard to the status of the child (as an unborn child before birth, and then as an – albeit projected – child after birth) which is not compatible with the respect for the dignity of the human person – a dignity which in this context cannot be weighted up against other values, or whose application will depend on the value attached to concrete fundamental rights – a fortiori, the only way in which disputes derived from those differences can be resolved must be the one that offers the greatest guarantees when it comes to protecting the highest values involved – human life, and the dignity of the human person – and to preventing a situation in which the party in most need of protection (the child) is subjected to a precarious status. In this regard [and notwithstanding the provisions of Article 3(m) of Regulatory Decree no. 6/2017] there is thus a clear need to give added precautionary protection to the dignity of the human person as applicable to the child after the birth (or the unborn child prior to the birth) – to begin with because this is an area that falls within the perimeter of the constitutional rights, freedoms and guarantees – as well as to the rights of the child to the development of his/her personality and to not be separated from his/her parents – at least the surrogate and the beneficiaries [see Articles 26(1) and 36(5), CRP] (on this point, see the Ruling, B.6.3 § 53). Indeed, and without prejudice to what has been said with regard to the preclusion of gestational surrogacy transactions which derives from the Ruling, it should be underlined that the model contract adopted by the CNPMA (only) offers two alternative conflict-resolution modalities in the event of differences with regard to the interpretation or execution of the contract, including in relation to the obligation to “surrender” and the “renunciation”: a mediation (and where applicable, arbitration) arrangement; and a pure arbitration arrangement under the terms of the Voluntary Arbitration Law (Law no. 63/2011 of 14 December 2011). Especially because there is a risk of disputes which transcend interests of a merely material nature (as in the case of the filiation tie and the resulting case of nationality) and which may thus be excluded from arbitration-based justice, this aspect of indeterminacy adds to the (legal) uncertainties surrounding the value at stake, which invoke the principle of the dignity of the human person as a limit that will necessarily determine a broader sphere of protection for that value.
Furthermore, and in addition to the two orders of reasons mentioned above, another source of uncertainty may also contribute to the precariousness of the (planned) child’s status: the question of the requirement that the contract include provisions covering the occurrence of any unexpected health events at the foetal level during the gestation [see Article 8(10) on matters concerning “cases in which foetal deformities or illnesses occur”, and Article 3(3)(g) of Regulatory Decree no. 6/2017). Indeed, and without prejudice to the current Criminal Code norm on “Non-punishable termination of pregnancy” [see Article 142(1)(c), CP], whatever the decision that is taken [necessarily – and only – by the pregnant woman, given the provisions of paragraph (4) of the aforementioned Article 142: in the case of gestational surrogacy, the surrogate] within the framework of the legal norm, the mere hypothesis that that decision (when it is not to terminate the pregnancy) can lead to a demand for some form of compensation linked to the situation provided for in Article 142(1)(c), CP – as the text of Clauses 9 and 10 of the model gestational surrogacy contract adopted by the CNPMA suggests – brings the status of the (first planned, then born) child close to that of an “object” whose “characteristics” (negatively valued) would be “quantifiable” from an asset-based (material) point of view in a way which, even in the light of the “object formula”, as referred to in the grounds for the Ruling (see § 22), would concretely entail the child’s degradation.
Lastly, the uncertainties which, from the perspective of the child, justify my understanding of this question can clearly also arise out of the nullity regime laid down by the legislator, especially from the point of view of the child’s legal filiation, seen as an aspect of the right to personal identity, and of the corresponding establishment of family relationships. Where the grounds for the Ruling that are set out in B.6 are concerned, I especially concur with those included in B.6.1 § 47 and B.6.2 (The questions regarding the regime governing the nullity of gestational surrogacy contracts for which no charge is made) and B.6.3 (The question of the indeterminability of the legal regime governing the gestational surrogacy contract) – exactly because, quite apart from anything else, they convey an uncertainty which calls for an additional protection for the dignity of the human person pertaining to the (projected) child, on a precautionary basis.
3.2 On the question of the ‘renunciation’ of the rights and duties pertaining to maternity, which is an essential component of the notion of a gestational surrogacy “situation” – and whose counterpoint in the legal regime is the norm which sets aside the abovementioned legal rule contained in Article 1796(1), CC, and establishes the filiation regime in a gestational surrogacy situation according to which the child who is born is deemed to be the son or daughter of the respective beneficiaries – I also consider that because this “renunciation” conditions the sphere of the (projected) child, it also entails an uncertainty and a risk that are not compatible with the principle of the dignity of the human person, as seen from the child’s perspective.
Even if one were to accept that ‘renunciation’ is an expression of the free development of her personality and her self-determination by the surrogate who, sharing the beneficiaries’ wish to implement a parental project of their own, chooses to make that project viable – a choice that is reflected in the free and informed consent which is freely revocable even after the therapeutic MAP processes have begun (failing which, from the surrogate’s perspective there would be a disproportionate restriction of her right to the free development of her personality, as interpreted in the light of the dignity of the human person – see point B.6.1 § 46 of the Ruling) – that expression of will (in addition to giving rise to the aforementioned uncertainties in the event that it does not take place after all) would still project itself into the legal sphere of a third party (after he/she is born): on the one hand, up until the birth that third party – the child – will only experience a biological (and epigenetic, albeit not genetic) relationship with the surrogate; on the other, if the “renunciation” occurs after the birth, that expression of the surrogate’s will, will definitively deprive him/her of parenthood by and a family relationship with both the surrogate and her family. What is more in this respect, – and now solely from the surrogate’s perspective – the fact that the Law provides for “renunciation” always immediately entails the definitive preclusion of her (fundamental) right to form a family which includes the child in relation to whom she took the pregnancy to its term, even though the surrogacy is a gestational (and not a genetic) one.
3.3 These various forms of uncertainty thus lead to a dangerous situation which, in its own right given the centrality of the value at stake, already entails a violation of that value, thus calling for a strong (or a higher level of) protection in response to those uncertainties. A situation which, on the grounds of prudence and even bearing in mind the way in which social conceptions are evolving, consequently also calls on the legislator to refrain on a precautionary basis from legally permitting gestational surrogacy – as is the case in other legal orders.
This conclusion leads me to disagree in particular with that of the majority in points B.4 § 33 and B.5 § 35 of the Ruling (respectively with regard to the analysis of the dignity of the child who is born by means of gestational surrogacy, and other questions of constitutionality raised by the Portuguese model). I say this to the extent that the majority draws the following conclusions: from the inability to be certain about the harm caused by the break in the biological link between the surrogate and the unborn child, that a legal argument founded solely on the dignity of the child cannot be pertinent; and from the uncertainty of the danger which gestational surrogacy inherently poses for the child’s development, that there is a significant space within which the legislator is entitled to assess the matter and shape the ensuing legislation, with no requirement for a single form of action, especially an attempt to absolutely prevent any risk by prohibiting the so-called gestational surrogacy “situation”.
Be this as it may, if we compare the result at which I arrive by the path set out above – i.e. that none of the norms contained in Article 8 are in conformity with the Constitution – with the corresponding result reached by the majority and reflected in the Decision conveyed in the Ruling, and if we take into account all the various parameters which the majority deems to have been breached, it should be noted that the only Article 8 norms which the Court has not declared unconstitutional – either directly [the norms contained in paragraphs (4), (10) and (11); paragraph (8), taken in conjunction with Article 14(5); and paragraph (12)], or on a consequent basis [those contained in paragraphs (2) and (3); and paragraph (7)] – are those included in paragraphs (1) (notion), 5 and 6 (negative requisites), and (9) (referral, mutatis mutandis, to Articles 12 and 13, on the beneficiaries’ rights and duties). The fact is that, in reality, these paragraphs become inapplicable in practical terms without the norms that have been declared unconstitutional; and that, even from the perspective which differs from my own, it would be difficult for the norm contained in paragraph (1) to survive. In the latter case, I say this due to the fact that the Law provides for the child to be surrendered after he/she is born and for the (corresponding) renunciation of the powers pertaining to maternity – something that is hard to equate with the understanding that the limitation on the revocability of the surrogate’s consent that is derived from the current regime [as a consequence of the referrals by Articles 8(8) and 14(5) to Article 14(4), LPMA] is not in conformity with the Constitution, above all when there are competing “parental projects” (that of the beneficiaries and that of the surrogate), in which, and despite the intention to concretely bring about a gestational surrogacy “situation” (deemed to be such “to begin with”), the “surrender” (and corresponding renunciation) may in the end not even take place (thereby, “at the end”, precluding the full “situation” from being fully subsumed within the terms of the norm that establishes the notion of gestational surrogacy).
B) Norms contained in paragraphs (1) and (4) of Article 15 (“Confidentiality”) of Law no. 32/2006 of 26 July 2006 (with the text given to it by Law no. 25/2016 of 22 August 2016)
4. I partly dissent from the finding of unconstitutionality set out in paragraph (e) of the Decision, with regard to the norms contained in paragraphs (1) and (4) of Article 15 (“Confidentiality”) of Law no. 32/2006 of 26 July 2006 (with the text given to it by Law no. 25/2016 of 22 August 2016). My opinion in this regard is not altered by the fact that the Court has limited the effect of the finding in relation to paragraph (1).
To begin with, the understanding conveyed above and my conclusion that all the norms included in Article 8, LPMA, are unconstitutional [see (A) above] inevitably affects my view of the rest of those of the Law’s norms on gestational surrogacy that are under review by the Court in the present case – just as they affect my view of the norm contained in the part of Article 15(1), LPMA, that refers to gestational surrogacy and imposes a duty of silence in relation to the surrogate’s identity which ends up being absolute when conjugated with the other paragraphs of Article 15.
Secondly, and although I concur with the grounds given in the Ruling for the Court’s assessment of the conflicting fundamental interests, of the grounds and arguments presented by the petitioners (see C.3 and C.4), and of the part of the latter’s conclusions with regard to the rule on donor anonymity (see §§ 71 to 78 – conclusions that were then accepted by the majority in the Ruling, for reasons analogous to those that underpin the desire to know one’s genetic origins – i.e. the surrogate’s identity – and § 80), I believe that the question of constitutionality at stake here – that of the anonymity of donors in cases of heterologous procreation (and of the surrogate, in the view of the majority that found in favour of the admissibility in principle of gestational surrogacy) versus the right to personal identity – does not necessarily apply to the norm contained in paragraph (1). This is because, while that norm concerns an (absolute) duty of confidentiality, it refers to a (possible) means of obtaining information about the MAP act and the participants’ identities – failing which it would be possible to conclude that the only regime that would comply with the constitutional requirement to protect the right to personal identity would be one in which no duty of silence existed. My opinion is different – that the question of constitutionality here concerns the norm contained in Article 15(4), due to the limits which the means and conditions laid down therein (weighty reasons recognised in a court decision) effectively place on access to knowledge [over and above the right to information set out in paragraphs (2) and (3), which were not under review in the present case] about a donor’s identity. This is so, regardless of the way in which knowledge of the MAP act and the participants’ identities is acquired, be it by a broader (as a result of the unconstitutionality of the norm that establishes a duty of confidentiality in relation to knowledge of that act and those identities by the interested party who was born as a result of the use of MAP techniques, including in gestational surrogacy situations, as upheld by the majority) or a narrower [through his/her progenitors, or by seeking to determine his/her own identity, namely by means of the information that is accessible to the interested party under Article 15(2) and (3), LPMA] path.
In short, the question of constitutionality does not essentially concern the existence or otherwise of a duty of confidentiality [initially absolute, under Article 15(1), but now with exceptions under paragraphs (2) to (4)], but rather the actual right of access to information about the donor’s identity (and in the majority view, that of the surrogate as well) when seen in the light of the intensity of the protected value “personal identity”.
5. All of this leads me to take the position that the declaration of unconstitutionality could be restricted to just paragraph (4) of Article 15, LPMA – without prejudice to the view that, if this were to happen, one should consider whether it would be correct to limit the effects of the declaration of unconstitutionality, failing which, until the Law was amended in relation to this point, persons born following the use of heterologous MAP techniques would find themselves in a situation in which they would no longer be able to gain access [except in the cases covered by paragraphs (2) and (3), in which there is already an albeit limited access to a range of other relevant information] to the donor’s identity in the case of heterologous procreation (including in the pertinent cases of gestational surrogacy using donations of gametes or embryos), even in the restricted forms provided for therein (when a donor’s identity can be disclosed for weighty reasons recognised in a court decision). Only thus would it be possible to obviate the fact that, until a possible amendment to the law had been made, the declaration of unconstitutionality – issued in the name of the right to personal identity and its prevalence over other applicable interests and values – would actually end up leading to a diminished degree of protection for that right.
C) Norms contained in Article 20(3) (“Establishing parentage”) of Law no. 32/2006 of 26 July 2006
6. Notwithstanding the grounds which the Ruling sets out in relation to this point (see section D §§ 81.-82.), given that the norm contained in Article 20(3) LPMA, presupposes the change of paradigm brought about by the final part of Article 6(1), LPMA, my view is that the scope of the Court’s review could have encompassed the questions which the latter norm can raise – as the Court says in the grounds for the Ruling (see § 81) – with regard to the possibility of creating single-parent families.
D) Limitation of Effects
7. I subscribe to the decision, and to the grounds for it as stated in paragraph (g), to order that the effects of the declarations of unconstitutionality set out in paragraphs (a) to (c) not apply to gestational surrogacy contracts which have already been authorised by the National Council for Medically Assisted Procreation (CNPMA), are in the process of being executed, and in which the therapeutic medically assisted procreation processes referred to in Article 14(4) of Law no. 32/2006 of 26 July 2006 have already begun.
8. However, and given that the Court has partially upheld the request for a declaration of unconstitutionality as reflected in paragraph (e) of the Decision (and without prejudice to the view I explain in B.5 above), I believe that the limitation of effects should also apply to that particular declaration.
The fact is that where Article 15(1) is concerned, the declaration of unconstitutionality set out in paragraph (e) of the Decision presents a limited scope, in that it only refers to part of the paragraph – “the part of Article 15(1) that imposes an obligation of absolute confidentiality in relation to persons born as a consequence of a process involving medically assisted procreation using donated gametes or embryos, including in gestational surrogacy situations, with regard to the fact that recourse was had to such processes or gestational surrogacy and with regard to the identity of those who participated therein as donors or the gestational surrogate” – thereby maintaining the duty of confidentiality in relation to other persons (not born as a consequence of that MAP process, including in gestational surrogacy situations). Moreover, together with the declaration that Article 15(4) is unconstitutional – a declaration whose effects the Court does not limit in any way – the decision set out in paragraph (e) is the result of a weighing-up process in which the Court found that the right to personal identity pertaining to the interested party (i.e. the “person born as a consequence of a MAP process with recourse to the donation of gametes or embryo, including in gestational surrogacy situations”) must prevail in its plenitude, including the dimension regarding knowing one’s genetic ancestry, due to the unnecessary nature of the current legislative option (unnecessary, in the light of the need to safeguard other fundamental rights or values to which the Constitution affords its protection), which establishes the – albeit not absolute – rule whereby donors in heterologous procreation cases must remain anonymous, along with the absolute rule of the anonymity of the gestational surrogate [due to the provisions of paragraph (4), which only refers to the “donor’s identity”]. Now the thing is that although the grounds given by the majority are open (see § 80) to a legislative solution which, in order to protect those other constitutionally protected rights and interests, could establish the opposite rule to the one included in the current regime before the Court [Article 15(1) and (4)], thereby addressing the aforementioned unnecessariness of the current legislative option (anonymity as a rule, albeit not absolute with regard to donors, but absolute in relation to the gestational surrogate) – a solution that would only operate for the future – the non-limitation of the effects of the declaration of unconstitutionality means, in my opinion, that even if that could be the legislator’s choice, it does not make it possible to provide – and, I would emphasise, not provide at all, even subject to certain conditions and in limited terms – for the other applicable interests (which are highly sensitive and also possess constitutional relevance) of the various parties involved, whose decisions – to resort to MAP techniques with donations of gametes or embryos – including in gestational surrogacy situations were taken within a given legislative framework and the context of a paradigm that is now significantly modified [as a result of the Court’s Decision]. The non-limitation of the effects of the decision set out in paragraph (e) may thus preclude the existence of any “safety valve” that would function in the other direction within the scope of heterologous MAP situations and legal relations constituted under the legislation that is now declared unconstitutional with generally binding force – a safety valve which, notwithstanding the value the majority deemed should prevail here, is made all the more necessary by the scope of the aforesaid change of paradigm in relation to the understanding of the dimension of the right of persons born as a consequence of heterologous MAP processes (including, in the view of the majority, in gestational surrogacy situations) to personal identity enshrined in Article 26(1), CRP, that entails being able to know their genetic ancestry, and also (in the majority opinion) the identity of “their” gestational surrogate.
Maria José Rangel de Mesquita
DISSENTING OPINION
1. I voted against the majority decision not to include the norms contained in Article 8(1), (2) and (3) of Law no. 32/2006 of 26 July 2006 (the Law governing Medically Assisted Procreation, LPMA), with the wording given to it by Law no. 25/2016 of 22 August 2016, in the finding of material (direct) unconstitutionality with regard to gestational surrogacy.
I consider that the introduction of so-called gestational surrogacy as a situation (the term used in the LPMA) in which recourse must be had to medically assisted procreation techniques [with which it is directly associated by Article 2(2), LPMA], thereby radically breaking with the option adopted by the legislator until 2016, entails an increased precariousness of the concept of human dignity with regard to some of the subjects involved (to begin with, the surrogate and the child). This concept, expressed by means of a prohibition of the instrumentalisation of the person (I follow the so-called “object formula”, as I will explain below) is imperilled in this context – put in a situation of existential insecurity which, in a domain in which the Constitution expressly postulates the idea of taking a precautionary stance in safeguarding the interests in question, leads to a breach of the principle of the dignity of the human person. This principle is enshrined in Article 1 of the Constitution of the Portuguese Republic (CRP) – “Portugal is a sovereign Republic, based on the dignity of the human person (…)”. When the Constitution then specifically refers to assisted procreation, it employs a language that is loaded with intentionality: “In order to protect the family, the state is particularly charged with (…) Regulating assisted procreation in such a way as to safeguard the dignity of the human person” [Article 67(2)(e)].
I will briefly explain my assertion that these norms are not in conformity with the Constitution. To begin with – and noting that my views are not entirely aligned with the assumptions underlying the majority position that led to the Court’s decision in relation to this aspect either – I would emphasise that, based on that same parameter, the factor in the first three paragraphs of Article 8, LPMA that I see as invalidative – the violation of the principle of the dignity of the human person, in the sense of a shortfall in the extent to which the principle is safeguarded – necessarily projects itself onto the rest of the Article’s paragraphs [(4) to (12)], in the sense that, in addition to the various different specific problems the latter pose in their own right, they too form part of the legal construction rooted in paragraphs (1) to (3), both presupposing and making effective, in a clearly dependent relationship, the fundamentally negative ethical valuation which I believe that construction entails. Based on the same parameter – breach of the principle of the dignity of the human person, as enshrined in Articles 1 and 67(2)(e), CRP – my own position would therefore have been that all the paragraphs of Article 8, LPMA, are materially unconstitutional.
1.1. In parallel, it is important to clarify the fact that I nonetheless share the understanding underlying the position reached by the majority of the Court in relation to the findings of unconstitutionality – and the essence of the grounds for that position – expressed in paragraphs (a), (b), (c), (d) and (e) of the Decision. I also concur with the finding conveyed in paragraph (f) of the Decision – that there is no unconstitutionality [in the rest of the Articles of Law no. 32/2006 of 26 July 2006 mentioned in the request], and specifically with regard to Article 20(3).
While all these cases involve other problems of unconstitutionality linked to the parameters mentioned in the various paragraphs of the Decision, they are also tied to problems which, from my perspective, add to the fundamentally negative ethical valuation I referred to in the previous point. This justifies the fact that, in line with my position, I concur with the findings that contributed to the Decision. Having said that, there is no doubt that if the decision were to be based (solely) on the key question which I raise (breach of the principle of the dignity of the human person), the norms included in Article 8 [and also Article 15(1) and (4)] would remain untouched from the majority point of view (i.e. they would not be invalidated on the basis of a violation of the principle of the dignity of the human person). The fact is that although on the one hand the problem of unconstitutionality which I pose is logically situated before or “upstream from” those that were key to the majority opinion, on the other, the fact that I agree with the questions of unconstitutionality which led to that other finding means I concur with the majority position that the decision-making dynamic generated by the discussion meant that it was appropriate for the Court to consider the petitioners’ request within the framework of those other problems.
1.1.1. On the subject of the consequential unconstitutionalities declared in paragraphs (a) and (c) of the Decision [regarding paragraphs (2), (3) and (7) of Article 8, LPMA], and without prejudice to the fact that my underlying premise – that the gestational surrogacy format embodies a violation of the principle of the dignity of the human person – leads me to say that the existence of those norms entails a situation of direct material unconstitutionality, this position nevertheless, and within the same overall framework of arguments that I outlined in the previous point, does not prevent me from agreeing with and sharing the understanding that led the Court to project its findings and declare the “consequential” or “connected” unconstitutionality of the specific norms in question.
1.1.2. A final note in these introductory remarks is my concurrence with the decision to limit the effects of some of the declarations of unconstitutionality, as set out in paragraph (g) of the Decision.
2. Having thus clarified these aspects regarding the way in which the Court came to the Decision, it is now important to explain in more detail the sense in which I differ with regard to the assumptions underlying the position which was adopted by a majority and was reflected in the finding that there is no direct material unconstitutionality in the way in which paragraphs (1), (2) and (3) of Article 8, LPMA, legally permit the situations now known as “gestational surrogacy” as a MAP technique.
Although the reason for this dissent ends up being only very partially expressed in the concrete norms encompassed by the different findings of unconstitutionality set out in the Decision, it is based on a fundamental underlying question that is projected in all the norms which presuppose the legal permission of the situation defined in Article 8(1). This fundamental problem is the underlying reason for my rejection of the constitutional conformity of the option to end the exclusion (the absolute prohibition) of surrogate motherhood (as it is commonly known) introduced by Law no. 25/2016.
When interpreted in accordance with their combined prescriptive meaning, the sequence of the norms which are now included in the first three paragraphs of Article 8 of the LPMA translates into the following permissive framework created by the 2016 legislature: we are in the presence of a permitted gestational surrogacy in (i) any situation in which a woman, by means of a transaction [written contract, see para. (10)] entered into with those whom the Law designates “beneficiaries”[2], is willing to undergo a pregnancy on behalf of another and hand the child over to those beneficiaries after birth, renouncing (the surrogate) the powers and duties pertaining to maternity; to occur (ii) by means of a pregnancy resulting from the use of a MAP technique using gametes (sex cells) from at least one of the beneficiaries, but always excluding any oocyte (female germ cell) from the surrogate from playing any part in that technique; in which (iii) the legal transaction in question, which is only possible on an exceptional basis, is of a gratuitous nature and presupposes, with regard to the beneficiaries, verification of a case of absence of uterus, injury or illness of the uterus which impedes the woman's pregnancy in an absolute and definitive manner, or in clinical situations which justify it.
It is primordially the sum of these preconditions – all contained in Article 8(1), (2) and (3), with the wording given to it by Law no. 32/2006 – that gives rise to the lawfulness of the gestational surrogacy situation. These requisites are cumulatively joined by all the other positive and negative elements contained in the other nine paragraphs of Article 8, taken in conjunction with other provisions laid down in the LPMA. All of this produces a complex situation on the levels of both its implementation and its consequences, but at the end of the day its meaning is simple and easy to understand: it entails a woman assigning her gestational function to another person, in a process that begins with a reproductive technology based on genetic material that must obligatorily come from someone other than the surrogate, with the purpose of obtaining a child (i.e. achieving a pregnancy that culminates in the birth of a child), so that the latter can be handed over to a beneficiary couple [here I presuppose the definition “made” by the CNPMA and referred to in footnote (2) to this Opinion], with that surrender involving the surrogate’s renunciation of the status of mother.
What makes the legal option expressed in this way valid is thus its primary purpose, which is to contractually provide someone with a child, by means of the assignment with a view to that specific end of someone else’s gestational process, which is thus “disposed of” (transferred to someone else’s domain in terms of both its functionality and its result). This means that with regard to the construction of the gestational surrogacy arrangement that has now been introduced into our legal system, it is possible to say that its primordial objective precisely matches the desired outcome: the child in his/her own right [the object of the obligation to surrender referred to in Article 8(1)], with the provision of the “pregnancy service” and the ensuing “assignment of a uterus” serving as necessary means designed to achieve the purpose expressed in the handing over of the child [see, for her definition of surrogate motherhood (surrogacy) in these terms, Donna Dickenson, “The commodification of women’s reproductive tissue and services”, in The Oxford Handbook of Reproductive Ethics, Leslie Francis (ed.), Oxford University Press, New York, 2017, p. 128].
2.1. That which comes next – the establishment of the filiation relationship of the child who is the object of the obligation to surrender to the beneficiaries, setting aside the rule whereby that maternity would be attributed to the surrogate [Article 1796(1), CC] – is the result of certain legal assumptions which condition the situation and are established (established ad hoc) in such a way as to take effect over the course of the procedure, leading to the construction of this different form of paternity and maternity now introduced into our legal system by means of Article 8(7), LPMA, and concretely achieving the purpose of the gestational surrogacy process.
These legislative choices – which, in objective terms, convey an undeniable sense of precariousness in the surrogate’s position within the framework of the pregnancy she undergoes when compared to the position of the beneficiaries in relation to that fact of the pregnancy (a fact which pertains to the surrogate’s body) – are demonstrative of the way in which the legislator sought to prevent a hypothetical infirmity in the gestation contract. This supposed infirmity might to some extent lead to competing desires for the child, and would be avoided by creating a kind of “better title” to the child on the part of the beneficiaries. This is (and it is understandable how) an internal strategy for defending the intentionality that presides over the legal choice made by the legislator, through the normative construction of a sort of guarantee, creating a rule for deciding conflicts in terms of the person(s) to whom parenthood of the child is to be awarded, and seeking to avoid situations like the 1980s case – the so-called Baby M affair, which was decided by the Supreme Court of New Jersey in 1988 – which lent visibility to the problem of “wombs for hire”.
However, these choices highlight the problem that is present from the start in the whole situation: the construction of a legal model which involves and provides a framework for reducing the surrogate to the condition of a gestational instrument for someone else.
This is the sense in which the presence of genetic material (oocytes) from the surrogate in the implementation of the MAP technique that is to give rise to the pregnancy and gestation is prohibited, thereby forming a genetic basis on which to state the idea – central to the gestational surrogacy situation – that the child in question is not the surrogate’s child, and emphasising that her function – that of her body and of all the organic functions involved in the pregnancy – is limited to the circumstance that she serves as a vehicle for the pregnancy and the birth of someone else’s child, thereby associating gestational surrogacy with an idea in which the woman’s body and physiology are “turned into a machine” with an “objectifying” and “commodifying” effect.
However, implicit in this instrumentalisation – in the fact that it is agreed to in the contract – is nonetheless a kind of “hidden clause” on the surrogate’s maternity within the framework of the consequences of certain vicissitudes that may occur in the gestational surrogacy situation. That clause ends up leading to this somewhat paradoxical effect, but must be seen as symptomatic of the increased precariousness of the surrogate’s position (and, to an intense degree, also of that of the child’s). The fact is that in situations which “appear to be” a gestational surrogacy, but where due to some aspect, the complex web of legal conditions woven throughout Article 8, LPMA is not entirely fulfilled, the transactions in question become null and void [Article 8(12), LPMA], thereby corresponding to the legal types of crime provided for in Article 39, LPMA [in the surrogate’s case, see those included in paragraphs (2) and (4)] in their multiple forms. These situations will lead to maternity being attributed to the surrogate, thereby making it clear that the increased precariousness of her status implicitly included a sort of “hidden clause” – expressed in the fact that the only situation in which the status of mother is reserved to the surrogate, with a sense of in malam partem, is the case in which a gestational surrogacy otherwise permitted by law is frustrated (i.e. rendered null and void). The invalidation of the contract causes the surrogate to acquire the status of mother upon the birth of the child (a status acquired only because the contract is null and void and configures a criminal offence), thus associating maternity with a kind of negative label, a sort stigmatising effect, while simultaneously affecting the position of the child. This situation was correctly detected and described by Maria Margarida Silva Pereira (“Uma gestação inconstitucional: o descaminho da Lei da Gestação de Substituição”, in Julgar Online, January 2017, p. 14): “(…) we consequently [find ourselves in a situation] in which the legislative understanding is based on the attribution of the status of gestational surrogate to the person who contractually undertakes to hand the child over to the principals in a lawful manner, and the attribution of maternity to the person who undertakes a contract that configures a criminal offence”. This is an effect which, as Prof. Silva Pereira points out, was certainly not intended, but is impossible to avoid: “(…) only someone who enters into the contract in a lawful manner is a gestational surrogate. Whoever agrees to conceive a child in an unlawful and criminal manner will be [his/her] mother (…)”.
It is thus – with an always latent sense of increased precariousness of the surrogate’s position – that initiating the process which corresponds to the gestational surrogacy situation is based on a capture of the surrogate’s consent (which is actually a renunciation of personality rights pertaining to both herself and others, in a way that is completely out of alignment with the strict space within which our legal order tolerates the voluntary limitation of those rights – see Article 81, CC) at a very early stage of the process, when no pregnancy even exists yet [see Article 14(5), ex vi (4), LPMA], in a desire to thenceforth immunise or guarantee the contract’s object (which is the child) in relation to any vicissitudes in the interaction between the surrogate and the human being who is going to be conceived by her.
The idea of altruistic voluntariness encompassed in the willingness to participate in the gestational surrogacy situation – a fundamental trait associated with the so-called Portuguese gestational surrogacy model – is thus rendered extremely relative, situating the surrogate’s consent/renunciation at a very premature moment in a process that is going to be long and full of significance, entirely depleting the exercise of that consent/renunciation right there – exhausting it in just one moment – by means of a single exercise. The singularity of that moment means that that exercise and its extremely important consequences are thus definitively captured, when that value – expressed in the exercise of an altruistic freedom – would only truly reflect the element which, from the point of view of the essence of the Court’s position, has the advantage of dissipating the original taint engendered by the instrumentalisation if – and only for as long as – it were to remain active.
It is true that paragraph (b) of the Court’s Decision eliminated that effect. However, the construction of that result – which, based on problems that are effectively present in this regime, I saw as a “second question” which arose as result of the fact that the court chose to deviate from that which was my basic position – was achieved within a framework of arguments that did not accept the direct projection of the absolute prohibition (grounded in the very essence of the principle of the dignity of the human person) of reducing persons to the category of instrumental means by which to achieve other people’s ends, even when that can be seen as an expression of a personal choice and even as the exercise of a freedom. That which the Court already said – and which is still current – in Ruling no. 144/2004 – and I am constructing an argument, not saying that there is any similarity between the situations involved, which is obviously not at all the case here – is valid in this respect: “(…) a legal system guided by values of justice and based on the dignity of the human person must not be mobilised in order to guarantee, as an expression of freedom of action, situations (…) whose ‘principle’ is that a person, in terms of any dimension (be it intellectual, be it physical…), can be used as a pure instrument or means in someone else’s service. We are compelled to reach this conclusion, first and foremost by Article 1 of the Constitution, when it states that the fundamental grounds of the Portuguese State lie in the equal dignity of the human person”.
The fact is that my understanding is that all the “secondary projections” – this is an image – which the Court directly or consequentially eliminated by means of the present Ruling are just that: inevitable outcomes stemming from the very essence of the construction of Article 8(1), LPMA. That paragraph, in its own right and in combination with paragraphs (2) and (3) of the same precept, contains at least (and this is already a lot in a domain like this one) the germ – the expression of a danger made possible and enhanced by a shortfall in the safeguards – to which the concrete implementation of a model – in my view, any model – of gestational surrogacy necessarily leads, given the specific dynamic that is inevitably associated with its functionality: the paroxysmal expressions which the Court, taking a path that differs from the one which I primordially argued for and which I defend here by explaining my divergence in more detail, ended up excluding. It is symptomatic in this respect that “almost none” of the regime contained in Article 8, LPMA, has survived the Court’s judgment. However, the basic question – the core problem – continues to be expressed in the acceptance of a triangular gestational model that presupposes situations “(…) in which [a] woman is willing to undergo a pregnancy for someone else and to surrender the child after the birth, renouncing the powers and duties pertaining to maternity”.
2.2. My argument here is this: the complete deconstruction of the idea of “motherhood” as applicable to the surrogate is achieved at the cost of an intolerable presence of factors that objectively express her instrumentalisation, creating an unsustainable uncertainty about the basis on which the constitutional value of the dignity of the human person is founded. On another level, I must also emphasise that the vicissitudes which project that deconstruction enhance factors of uncertainty with regard to the child who is conceived. Those factors cannot be overlooked, creating dangers – apart from anything else, due to the impossibility of controlling situations that come to involve non-Portuguese nationals in the gestational surrogacy process – whose somewhat vague nature nonetheless suggests the appropriateness of a cautious approach – a precautionary strategy on the legislator’s part when it makes its choices, and one that would prevent legislative solutions which entail the projection of those dangers.
It is important not to forget that, where the elements referred to here are concerned, gestational surrogacy intentionally constructs and initiates the situation which includes the potential for danger, rather than seeking to resolve – as is the case with adoption – a pre-existing situation to which it did not contribute [see Sidney Callahan, “The Ethical Challenges of the New Reproductive Technologies”, in Health Care Ethics: Critical Issues for the 21st Century, Eileen E. Morrison, Beth Furlong (ed.), Sudbury, 2009, p. 82].
By the very nature of things – the means to which recourse is necessarily had as part of the approach to the pathology which provides the justification for permitting gestational surrogacy in the first place – gestational surrogacy situations entail a strong presence of elements that inevitably express the instrumentalisation of a woman by the use of her body and her physiology as a means to achieving third-party ends. This is how the situation in its own right (due to the need to render it functional in terms of its objective) calls for legal constructions that can only rest on a basis which is in itself the bearer of negative value from a constitutional point of view, when measured against the very specific sense that Article 67(2)(e), CRP brought to the Constitution in the 1997 revision, within the relational framework that was established between assisted procreation and the principle of the dignity of the human person.
It is with this sense that the practical basis on which the construction of gestational surrogacy in the terms in which it is defined in Article 8(1), LPMA rests – necessarily rests – fails to provide for sufficiently dense and secure safeguards for the dignity of the human person; and this is why, in accordance with a logic that is constructed around the idea of precaution, gestational surrogacy should be excluded. This seems to indicate that the legislator – and there must be a reason why the majority of the European legislators have not followed the path that has been taken in Portugal – should refrain from adopting this sort of legislative solution in which the space for relativising the values in question is so broad that it enhances the potential for an unintended use which is truly impossible to control.
Even within the reference framework constructed by the Portuguese legislator, gestational surrogacy does in fact endanger (therefore: insufficiently safeguards) the principle of the dignity of the human person, which is placed in a state of existential insecurity that is unacceptable if a value of such importance as human dignity is to remain effectively protected.
2.2.1. This argument is valid within the framework of reference which, in constitutional theory, usually implements the model for identifying the basis underlying the value of the dignity of the human person, as a constitutional archetype. I am talking about the model with Kantian origins (see Michael Rosen, Dignity, Harvard University Press, Cambridge, Mass., London, 2012, pp. 20/21) that is expressed in the so-called “object formula”, when it excludes – and excluding such situations is precisely the principle’s functionality, as derived from its historical roots in the post-Second World War period – that which involves reducing, or which leads to the reduction of, a person to the category of object (its “objectifying” effect, be it intentional or merely consequential), turning him/her into a mere and fundamentally fungible means within the framework of a process whereby he/she is instrumentalised for someone else’s ends, excluding him/her from being considered as an end in his/her own right [see Aharon Barak, Human Dignity. The Constitutional Value and the Constitutional Right, Cambridge University Press, Cambridge, 2015, pp. 123 and 146/147]. It should be noted that the idea of “objectification” – proscribed by the “object formula” – is habitually (and as mentioned in the Ruling) understood as the idea of a person’s degradation due to the active presence of prototypical situations that express someone’s instrumentalisation and use, solely as a means in the pursuit of extraneous ends.[3] Inasmuch as the violation of the dignity of the human person is, in fact, the object of a negative ethical valuation in this context – resulting from the prohibition of a person’s effective degradation in terms of his/her intrinsic value – I cannot fail to note (setting out here an idea that I will develop further below) that the intrinsically dangerous relativization of values which this type of situation involves means that the protective scope to which the constitutional legislator unequivocally points [in Article 67(2)(e), CRP] requires an enhanced protection, postulating an extended circle of protection – only possible in a model based on the idea of legislative precaution. Indeed, in these types of situation, where the consequences are to a large extent unknown, and which objectively and intensely express the presence of factors of instrumentalisation that may throw the value of the dignity of the human person into a sort of existential crisis, an anticipatory protection is required.
It is thus on this basis, and with reference to the decision-making model that corresponds to the “object formula” set out by Günter Dürig in the 1950s (see Aharon Barak, Human Dignity…, op. cit., p. 147, note 36, which contains Dürig’s original wording of the “object formula”, within the framework of the interpretation of Article 1 of the German Constitution) – which affirms that the dignity of the human person possesses the nature of an “absolute right”.
Describing this assertion from a dynamic perspective, in its interaction with other values, this classification as an absolute right entails stating that its value (in terms of that which is excluded in accordance with it) corresponds to a space in which its content exactly coincides with the extent of the protection it confers. This in turn means that the affirmation of the dignity of the human person cannot be subject to limitations, and consequently that it is not possible to weigh it up in relative terms against other rights. This in the sense that a hypothetical relational operation involving an “accommodation” with other values – a conflictual “balancing” operation that positions the dignity of the human person in relation to other rights – already attains the threshold that constitutes the principle’s violation, in that that which it presupposes as a possible result already fails to express the value’s absolute nature (Aharon Barak, Proportionality. Constitutional Rights and their Limitations, Cambridge University Press, Cambridge, 2012, pp. 27/29).
This is why the identification of the factual presuppositions underlying the principle of the dignity of the human person must be a “narrow” one, in the sense that it must refer to very specific acts and situations that are necessarily few and far between (on this level, the dignity of the human person is sometimes referred to a “unique value”) and are very clearly expressed in the conflicting visibility of their relationship with the value in question. This narrowness is the “price to be paid” for the extreme intensity of the protection which absolutisation confers on everyone and demands of the legislator (Dieter Grimm, “Dignity in a Legal Context and as an Absolute Right”, in Understanding Human Dignity, Cristopher McCrudden (ed.), Oxford University Press, Oxford, 2013, pp. 388/389).
It should be underlined, however, that even if one admits that it is not entirely impossible for the dignity of the human person to be weighed against another value – the assertion that the principle’s absolute nature cannot, immediately and in every situation, exclude the existence of some form of narrow margin in which a balancing is possible (the position taken by Robert Alexy) – one must nevertheless simultaneously assert that the process of determining its relative weight within such a framework can only be triggered by “extreme conditions” and on the basis of a very small set of possibilities, which can only occur in the concrete assessment of a specific case, and never in abstract terms, as presupposed by the type of constitutional review conducted by the Court in the present case: “(…) balancing, however, may only take place relativized to concrete cases”; “(…) it is impossible to balance principles abstractly, without referring to concrete cases” (Matthias Klatt, Moritz Meister, The Constitutional Structure of Proportionality, Oxford University Press, Oxford, 2012, pp. 31/32).
Be this as it may, the model that is usually employed when the principle of the dignity of the human person is subject to jurisdictional control – and especially within the scope of constitutional jurisdictions – tends to exclude the idea of a balancing process. It does so in the belief that this type of reasoning already entails accepting the idea – antithetic to the enhanced level of protection required here – which lies at the heart of the principle – a level that is sometimes identified as an expression of an effect whereby the principle must always triumph in confrontations with other rights.
This model interacts well with the question of danger, in the sense that it postulates the idea that it is impossible to manage the risk of violation, reaffirming the protection of the dignity of the human person at this anticipatory level, situating the violation in an outer circle that is broader than the central core of the protection, in which there is a strong sense that – as in the present case – the basic values are relativized by being placed in a situation of existential insecurity with which – i.e. in a danger with which – the nature of the key principle that structures our constitutional order – the dignity of the human person – is unable to coexist.
Matthias Klatt and Moritz Meister refer to the case law of the European Court of Human Rights in Chahal v. United Kingdom (Application no. 22414/93, decided on 15/11/1996) in order to exemplify this protective model. In that case, the mere risk posed by a person’s deportation to a country where one could not safely exclude the possibility of his being subjected to cruel treatment – in which it was not safe to conclude that there was no possibility of a violation of Article 3 of the European Convention on Human Rights (Prohibition of Torture) – was already equivalent to such a violation (the prohibition of torture falls within the core of principle of the dignity of the human person), thereby precluding any analysis of counter-arguments linked to allegations of terrorist activities made in relation to the applicant (see §§ 79/81 of the Judgment, culminating in § 82: “It follows from [the existence of the mere risk that the values underlying Article 3 of the Convention might be endangered] that it is not necessary for the Court to enter into a consideration of the Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities and the threat posed by him to national security” [see The Constitutional Structure of Proportionality, op. cit., pp. 32/33]).
2.2.2. It is important at this stage to return to the idea – already touched on in several sections of this Opinion – of the link between the element of danger and the intensity of the protection afforded to the principle of the dignity of the human person, as derived from its absolute nature.
While there can be no doubt that the principle expressed in Article 1, CRP, constitutes a central and truly archetypical element of our constitutional order, when the Constitution concretely implements that principle in the field of assisted procreation it expressly refers to an additional element that is charged with meaning. By this I mean the imposition by the constitutional legislator that undertook the fourth revision of the CRP (1997) of the obligation to safeguard (etymologically, to protect, defend, remove from danger) the dignity of the human person within the framework of the regulation of assisted procreation enshrined in Article 67(2)(e). When they characterise one the central aspects of the fourth constitutional revision, J. J. Gomes Canotilho and Vital Moreira qualify this obligation to safeguard as a “(…) ‘positivisation’ of the biomedical constitution (…)” (Constituição da República Portuguesa Anotada, 4th ed., Coimbra, 2007, p. 36).
This is an occurrence that I hold to be very significant, in the sense that it becomes the basis for a type of extended protection against the danger, targeted at situations in which the fact that there is a degree of ambiguity about the element “degradation” nevertheless fails to exclude the presence of a situation whose materialisation is objectively based on factors that reveal instrumentalisation, objectification and a reduction of a person to the state of a means to someone else’s ends. These conceivable effects are at the heart of the ethical dangers involved in the biotechnology applied to human reproduction – a field in which legislative choices cannot be guided by the technological imperative (“what can be done must be done”) without taking other considerations into account (Sidney Callahan, “The Ethical Challenges of the New Reproductive Technologies”, op. cit., p. 81).
The idea of caution, which we can identify with the principle of precaution (see Alain Pottage, “The Socio-Legal Implications of the New Biotechnologies”, in Annual Review of Law and Social Science, Vol. 3, 2007, p. 333) – which, as a model for legislative decision-making originates in the field of environmental law (the criticisms which Cass Sunstein levels in Laws of Fear, Cambridge University Press, Cambridge UK, 2005, refer to the model’s use in this specific field) – is also valid in this context.
Another vision of that model should be applicable here – outside the very particular context of the environment – based on the transposition of the idea of precaution to a framework of anticipatory or advance defence required by the unique nature of the principle of the dignity of the human person, as a true, central “archetype” in our constitutional model – here I employ the idea of “archetype” in the same sense as Jeremy Waldron: “(…) When I use the term ‘archetype’, I mean a particular provision in a system of norms which has a significance going beyond its immediate normative content, a significance stemming from the fact that it sums up or makes vivid to us the point, purpose, principle or policy of a whole area of law” [“Torture and Positive Law: Jurisprudence for the White House”, in Columbia Law Review, Vol. 105, No. 6 (Oct., 2005), p. 48].
It is in the light of this construction that I interpret – and subscribe to – the warning given by Rui Medeiros in his notes on Article 67(2)(e), CRP, in terms of the express constitutional choice with regard to the subject of medically assisted procreation to highlight the need to safeguard the dignity of the human person: “(…) regardless of the fact that the prognostic judgements made by the democratic legislator are subject to review, it would seem questionable if, in domains that are this sensitive in a state based on the rule of law, in which a legal provision can open the door to solutions that are capable of irremediably compromising respect for the dignity of any and all human persons, one were not to impose – perhaps in the name of an idea of prevention or precaution – a strict scrutiny test (…)” (Jorge Miranda, Rui Medeiros, Constituição Portuguesa Anotada, Vol. I, 2nd ed., Lisbon, 2017, p. 988).
2.3. Notwithstanding that which I say in points 1.1, 1.1.1 and 1.1.2 of this Opinion, these are essentially the reasons why I moved away from the position on which the majority based the Court’s Decision.
I disagree with that position and essentially (this is not a circumstantial aspect where the grounds for the Decision are concerned, albeit it has little effect on the norms that were effectively struck down) with the way in which the majority interprets – in the light of the principle of the dignity of the human person and primarily the way in which that principle is referenced in Article 67(2)(e), CRP – the existence of the gestational surrogacy format, as defined in the general terms set out in Article 8(1), LPMA (a norm which the Court’s decision maintains), and then concretely implemented in paragraphs (2) and (3) of the same Article (only invalidated on a consequential basis), and in paragraphs (4) to (12) (only invalidated and on the basis of parameters which I accept, but which do not address the problem I identify above).
I acknowledge that the present Ruling uses a powerful and extremely rigorous line of argument to attribute a substantial meaning to the dignity of the human person, and that its argumentation is not constructed – here I quote from Maria Lúcia Amaral’s dissenting opinion in relation to Ruling no. 101/2009 – “(…) on the basis of the absence (rather than the necessary presence) [of a] substantial meaning”.
The challenge which lies at the root of my disagreement is precisely the substantial meaning arrived at in the Ruling and its relationship with the question of gestational surrogacy – a meaning within which I was unable to find room to accommodate the position I uphold.
I believe – and to borrow the words of Paulo Otero (“A Dimensão Ética da Maternidade de Substituição”, in Direito & Política, no. 01, October-December, 2012, p. 91) – that “(…) in an extremely delicate topic like surrogate motherhood, it is always possible to keep the door closed, but it is never possible to keep it ajar – the ethical dimension of the problem advises us to keep the door closed, and the legal dimension strongly recommends it”.
José António Teles Pereira
DISSENTING OPINION
1. I vote in favour of the finding of unconstitutionality set out in paragraph (e) of the Decision, which concerns: the norms contained in Article 8(1) of Law no. 32/2006 of 26 July 2006, in the part where they impose an obligation of absolute confidentiality in relation to persons born as a consequence of a process involving medically assisted procreation (MAP) using donated gametes or embryos, including in gestational surrogacy situations, with regard to the fact that recourse was had to such processes or gestational surrogacy and with regard to the identity of those who participated therein as donors or the gestational surrogate; and the norms contained in Article 15(4) of the same Law. However, and with regard to donors, I do not agree with the grounds on which the Decision is mostly based, inasmuch as I consider that the grounds for the unconstitutionality of the aforementioned normative dimension are to be found in different parameters – namely a breach of the principle of equality (Article 13, CRP), taken in conjugation with the rights to personal identity and the development of personality enshrined in Article 26(1), CRP. The reasons for my view are summarised below.
2. Except in relation to gestational surrogacy (permitted only with the amendments made to the LPMA in 2016), the normative provisions on the obligation to keep the identity of persons who participate in MAP processes as donors confidential from the persons born as a consequence of such a process are the same as those which the Court reviewed in Ruling no. 101/2009 – also an abstract ex post facto case. On that occasion the Court found no violation of either the right to personal identity and the right to the development of one’s personality [Article 26(1), CRP], or the principle of equality (Article 13, CRP), with regard to persons born following the use of heterologous MAP techniques. In reaching that view, the Court took into account the fact that the duty of silence laid down by the legislator was attenuated by the interested party’s ability to access, via the CNPMA, all the data of a genetic nature except for the donor’s identity, and that the limitation on disclosure of the data that would reveal the latter, as derived from the requirement for prior authorisation by a court, is justified by the need to preserve other values to which the Constitution affords its protection, and thus does not constitute an excessive restriction or arbitrary discrimination that would warrant criticism in the light of the principle of equality between citizens.
The majority position in the present Ruling sets that understanding aside, underestimating both the risk of affecting the peace in the family and the loving emotional bonds that connect the members of a family, and the risk of a major fall in the number of donors – both risks that were recognised in the Court’s earlier ruling. The majority in the present case considers that these risks are not capable of justifying the mitigated anonymity regime laid down by the legislator, but rather that the situation requires a standard regime which gives persons born by means of a MAP process the right to be told donors’ identities whenever they ask for it. It is with this path, which the Ruling takes in providing the grounds for the Court’s decision on this point, that I disagree, inasmuch as I essentially concur with the reasoning set out in Ruling no. 101/2009.
3. I consider that the prudential assessment of those risks – which are real, and which do not appear to be less substantial within the Portuguese social context, particularly in terms of the reduction in the number of Portuguese donors, which remains very low – lies within the margin of appreciation available to the democratic legislator. Given the conflict between constitutionally protected interests or values that is present in this matter, this legitimates the adoption of a solution which creates a balance or a practical harmonisation by stipulating that the standard regime should be that of a mitigated confidentiality where donor identities are concerned.
Moreover, although there are no judicial decisions handed down in cases brought under Article 15(4), the fact is that – as was considered in Ruling no. 101/2009 – the weight attached to the reasons given by the interested party should in general prevail in the judicial appreciation of the concrete case in the light of the fundamental rights to personal identity and to the development of personality, particularly when there is no opposition on the donor’s part or that right does not run the risk of injuring his/her fundamental rights as a result of the disclosure (see RUI MEDEIROS and ANTÓNIO CORTÊS, Constituição da República Portuguesa Anotada, Tome I, 2nd edition, Coimbra Ed., 2010, pp. 610-1611, arguing that the implementation of the general clause ought to warrant an interpretation in accordance with the fundamental right to know one’s genetic origins). Seen in this way, the system instituted by the legislator does not appear to be less effective in the light of the right to know one’s origins, than another based on the right of access to the identity of the progenitors, but whose outcome is dependent on ascertaining the views of the donors in question (and the possibility of their opposition to disclosure).
What is more, I don’t agree that the information provided by Comparative Law – all the more in the light of the evolution that has taken place in European countries since Ruling no. 101/2009 was handed down – is as important and conclusive as the majority considers it to be. After all, the confidentiality option remains current in a variety of legal systems, maxime in states where the social fabric is closest to our own, such as Spain and France. We should also note that when the United Kingdom dropped the anonymity rule (by this I mean absolute anonymity, which the norms before the Court in the present case do not establish), it protected the legal certainty of the donors who donated gametes or embryos prior to 1 April 2005 and do not expressly dispense with anonymity: the rule for that universe of subjects remains one of silence with regard to their identity.
4. The problem poses itself in different terms when one considers the confidentiality that covers the identity of the gestational surrogate. This is an absolute anonymity, without any margin within which to weigh up or balance the situation, and this restriction on the rights of the person born via that process to his/her personal identity and the development of his/her personality proves effectively disproportionate. The need to protect “family peace” that can pose itself on this level is significantly smaller than the need where donors are concerned. It is worth noting that studies indicate that parents tell their children about the part played by a gestational surrogate much more often than they tell them about the existence of a donor (this may be linked to the evident social fact that the mother was not pregnant, or to the fact that the gestational surrogate was a family member), while simultaneously allaying fears that preestablished loving bonds may be altered or that the child may become confused about parental roles (see V. JADVA, S. IMRIE and S. GOLOMBOK, “Surrogate mothers 10 years on: a longitudinal study of psychological well-being and relationships with the parents and child”, Human Reproduction, Vol. 30, No. 2, pp.373-379, 2015; doi:10.1093/humrep/deu339).
5. Having said that, the petitioners did not limit their request for a declaration of unconstitutionality to the restriction of the rights of persons born by means of heterologous MAP to personal identity and the development of their personality. They also referred to the recent amendments made to the Adoption Law in the light of the principle of equality – a problem that was naturally not considered in Ruling no. 101/2009, inasmuch as the latter predates the amendments in question.
Indeed, there is a similarity between the adoption regime and the issue before us here, given that – as is the case with heterologous MAP – the filiation is not based on biological parentage. The problem of the right to know the identity of one’s progenitors thus poses itself with regard to both groups of subjects (adoptees, and persons born by means of a MAP process using donated gametes or embryos) in comparable terms.
In the current adoption regime, Article 1990-A, which was added to the Civil Code by Law no. 143/2015 of 8 September 2015, guarantees adoptees the right to know their origins, under the terms set out in the legislative act that regulates the adoption process. The latter, which was approved by the same Law, contains (Article 6) the conditions governing and limits on that information. Article 6(1) places social security bodies under a duty to provide the data concerning their identity, origins and ancestry to adoptees aged sixteen years or older (requests by minors must be authorised by the adoptive parents or the minor’s legal representative, and technical support must obligatorily be provided). No other requirement is placed on the adoptee who makes the application; he/she doesn’t have to go to court or give the reasons for his/her request, in order for the identity of his/her progenitors to be disclosed to him/her.
The fact that the legislator decided that the overall adoption regime should include this standard regime of access by adoptees to knowledge about their origins in the shape of the information about their progenitors, without imposing any legal burden on the adoptee, effectively contrasts with the – albeit mitigated – confidentiality rule that continues to exist in the MAP regime with regard to the identity of those who participated as donors. This creates a differentiated treatment between subjects in comparable situations, without any material justification that legitimates doing so.
In the light of the fundamental right in question here, the circumstance that, unlike persons born by means of heterologous MAP, adoptees are recognised to possess a legal natural filiation tie which is replaced by an adoptive filiation, whereas the MAP donor is irrelevant to the child’s parenthood, does not resolve this differentiation issue. Even the possibility that in the adoptee’s case there may be a period of interaction with his/her natural parents, which may generate memories that have no parallel with donors in MAP processes, does not on its own provide the grounds for this inequality. It may, however, be significant on the level of the possibility that the donor can oppose disclosure, and that cases involving conflicts between fundamental rights may have to be decided by the courts.
I thus believe that the part of the normative regime which imposes an obligation of absolute silence in relation to persons born as a consequence of MAP using one or more donations of gametes or embryos, with regard to the fact that such processes existed and to the identity of the people who participated therein as donors, entails an arbitrary discrimination that is in breach of the principle of equality (Article 13, CRP), taken in conjunction with the rights to personal identity and the development of one’s personality, as enshrined in Article 26(1), CRP.
6. While, for the reasons I have given, I subscribe to the declaration of the unconstitutionality of the part of the norms contained in Article 15(1) and (4), LPMA, referred to in paragraph (e) of the Decision, I am also of the view that the donor’s informational autonomy – a value that is protected by the Constitution (Article 35, CRP) – and reasons of legal certainty, supported by the need to maintain favourable conditions for donations in Portugal, would have justified restricting the effects of that declaration under the terms of Article 282(4), CRP, in such a way as to safeguard the (mitigated) confidentiality covering the identity of the person(s) who donated gametes or embryos up until the date on which the Court’s decision is published. To put it another way, in the case of donations made at an earlier point in time, disclosure of data identifying the donor would not cease to be possible, but would remain subject to the need to show a court that there are weighty reasons for it.
Given the elimination of the norms that have been declared unconstitutional brought about by the inherent efficacy of a declaration with generally binding force [Article 282(1), CRP], I believe that there will certainly be donors whose confidential status is now invalidated and who, often in an initial phase of their adult life and before constructing their own family project, saw the condition of that confidentiality as indispensable to the formation of their willingness to furnish their gametes or embryos. They considered that that condition was fulfilled by the legal regime which was in place at the time, with the additional certainty provided by the fact that it had been subjected to review by the Constitutional Court. Failure to consider the position of such subjects entails important risks for the success of future appeals for donations, thereby compromising the possibility of heterologous procreation with recourse to Portuguese donors.
Fernando Ventura
DISSENTING OPINION
A.
1. I voted in favour of both paragraphs (a), (b), (c), and (d) of the Decision and, in general, the grounds on which the latter was founded (albeit with a few divergences, which I describe below).
2. I partly disagreed with paragraph (e) (confidentiality in relation to persons born as a consequence of a medically assisted procreation process using donated gametes or embryos, where the donors’ identities are concerned), because the unconstitutionality solution arrived at by the Court in this part of the Decision did not match my position.
3. I also partly dissented from paragraph (g) (effects of the declaration of unconstitutionality), because I had argued that the limitation of effects should also have covered the paragraph regarding the part of the abovementioned confidentiality [paragraph (e)] referring to the identity of donors who had made their donation prior to this Decision by the Court.
B.
1. I will begin by saying that I accepted the line of reasoning which the Court expressed in the Ruling, whereby permitting gestational surrogacy in its own right does not violate the Constitution. I restricted myself to rejecting a number of legislative solutions designed to implement that permission, accompanying the Ruling without thereby excluding the constitutional admissibility of this special medically assisted procreation (MAP) technique.
As such, I agreed with the majority solution set out in the Ruling when, for example, it considers that as a means of putting a parental project into practice, the gestational surrogacy technique does nothing, in its own right, “to violate the dignity of the child who is born following the use of that form of reproduction”, that it does not violate the duty to protect childhood (Article 69, CRP), and also that, “Taken on its own, this form of procreation does not conflict with the constitutionally appropriate concept of family”, but is on the contrary, a “factor that renders [the family] more dynamic”, when it is not possible to establish filiation ties for health reasons.
2. I did not, however, fully concur with the grounds on which this solution was based, especially the part in which, on the subject of the characterisation of the Portuguese gestational surrogacy model (e.g. § 27), it sees the legislator’s intervention as a mere option, inasmuch as it would be up to the legislator to choose whether or not to permit gestational surrogacy. In fact, although the Decision considers that this technique should not be set aside without strong reasons for doing so, because it promotes values to which the Constitution grants its protection, and the majority therefore accepts that it is “permissible in principle”, I am unable to see my own view reflected in a position that relegates the adoption of gestational surrogacy, or of the other forms of MAP, to the free discretion of the legislator and thus to the circumstantial whim of parliamentary majorities.
To my mind, on the contrary, more than an option available to the legislator, the decision to permit – albeit subject to conditions – gestational surrogacy (and MAP in general) is a solution which the Constitution imposes in order: to guarantee legal interests and values with constitutional relevance, whenever it entails procedures that are both technically possible and not contrary to human dignity (something which, in the case of gestational surrogacy, can render that permission indispensable – and here I would emphasise the health-related reasons for the process, its exceptional nature, and the guarantees of the surrogate’s freedom and autonomy, such as the requirement for surrogacy to be gratuitous); to effectively implement the fundamental right to procreate and to form a family [Article 36(1), CRP]; and to make a reality of the right to the free development of personality pertaining not only to the persons who will assume the child’s maternity/paternity, but also to those who make the donations and to the gestational surrogate [Article 26(1), CRP]. This is why, unlike the view reflected in the Ruling (and before it, in Ruling no. 101/2009), I consider that there is not just a “permissibility in principle”, but a requirement for it to be possible to use MAP techniques, including gestational surrogacy.
3. I believe that when, in Article 67(2), the Constitution requires the state to regulate MAP while simultaneously safeguarding human dignity, it not only permits MAP, including gestational surrogacy, but also seems to want the legislator to actually contemplate such techniques, albeit in a way that ensures they don’t violate human dignity. It is thus up to the legislator to define the conditions needed to implement them, within the technical possibilities, but also under circumstances that preserve the dignity of the human person.
This doesn’t oblige the state to allow MAP and gestational surrogacy as pure alternative methods and under any circumstances. In the present case, this means that the legislator’s freedom particularly entails the ability to choose to restrict the authorisation of gestational surrogacy to situations in which it is the only available procreation method – e.g. for reasons of infertility, or for evident reasons linked to morphology/sex.
Despite this understanding, I cannot follow those who argue that gestational surrogacy should be permitted even when it is for profit, because what is at stake is the free development of the surrogate’s personality, and the decision to be a surrogate must represent a full expression of her autonomy. In my view, the question is not to assert the surrogate’s autonomy at all costs (something that would lead to allowing gestational surrogacy, even when it is for profit, as a form of disposition of one’s own body), but only up to the point at which it clashes with human dignity itself, and first and foremost with the dignity of the child.
I believe there can be circumstances – and the Constitution highlights this – in which gestational surrogacy must not be permitted. The most striking of those situations is for-profit surrogacy, because of the child’s dignity, which would be endangered or undermined in such cases.
In short, I am of the view that it would be unconstitutional to preclude gestational surrogacy whatever the case, but that it would be constitutionally permissible for there to be a legislative solution that allows for it, but imposes special conditions – the absence of any form of profit, for example – which defend the dignity of the human person (the surrogate’s and the child’s).
In my view, the fact that the act is entirely voluntary and altruistic is one of the requisites that go a long way to avoiding any violation of human dignity here. Other conditions would include the need for free, informed and freely revocable consent, which expresses true autonomy, and also that gestational surrogacy be a subsidiary method of procreation.
C.
Despite my above position as to the existence of a right to medically assisted procreation and to gestational surrogacy, I accompany the majority conclusion (and the grounds for it) that some of the concrete legal solutions that are (essentially) laid down in Article 8, LPMA, are contrary to the Constitution. As the text of the Ruling thoroughly expounds and justifies, it was these particular legislative options that were declared unconstitutional, and not the permissibility of gestational surrogacy in its own right.
D.
1. I partly dissented from paragraph (e) of the Decision, in that I disagree with the part where the Court holds unconstitutional the norm which imposes an obligation of confidentiality in relation to persons born as a consequence of a medically assisted procreation process using donated gametes or embryos, including in gestational surrogacy situations, with regard to the fact that such processes took place and to the identity of the people who participated therein as donors or the gestational surrogate.
2. I began by agreeing with the Ruling about the interpretation of the norm, inasmuch as I consider that it does not contain a requirement for absolute secrecy. This is because the norm clearly includes a mechanism whereby the courts can weigh up the situation, when it states that “information may also be obtained about the donor’s identity for weighty reasons recognised in a court decision”.
Even if one were to accept that the norm imposes a restriction on the right of the person who was conceived with recourse to MAP techniques, I nonetheless believe that the solution contained in the norm still made it possible to find a balance between the various different rights that were affected, respectively pertaining to the donor, the legal parents, and the person who was conceived with recourse to MAP (without thereby excessively restricting the rights of the latter). I am therefore of the view that, in general, the Court’s case law on this matter, as set out in Ruling no. 101/2009, should have been upheld.
3. I disagreed with the view that the norm which determines that a donor’s identity can only be disclosed by a court order based on weighty reasons is unconstitutional (due to a breach of the rights of the person who was conceived to personal identity, the development of personality, and genetic identity). However, my position was also that the legislator should create a differentiated regime with regard to the confidentiality of the identity of the gestational surrogate, and this is why I subscribed to that part of the finding of unconstitutionality. The difference between these situations is based on the fact that the right to personal identity, in its dimension as a right to personal historicity – to know one’s roots – in the confrontation with the other fundamental rights at stake is worthy of a protection which differs in intensity depending on whether the issue is a donation of gametes or embryos or the recourse to gestational surrogacy.
4. I would emphasise that, in the case of the use of MAP techniques, my divergence in relation to the confidentiality solution set out in the Law only concerns the need to identify the concrete donor (the most important information being his/her name), and not the absence of confidentiality about the use of the techniques, or disclosure of the conceived person’s genetic heritage, on condition that there is no concrete reference to a person who may be identified by the person who was conceived by means of MAP, acting alone.
5. I argued that, in the case of gamete and embryo donations, the right to personal historicity invoked by the person who was conceived with recourse to MAP is not dense enough in order to justify its protection at all costs. I am unable to see any injury to this right that is significant or excessive, given the absence of a relational interaction underlying the process itself – a circumstance which necessarily weakens any attempt to invoke a common history. As such, in my view and in these circumstances, the dimension of the right to personal identity of the person conceived using MAP which is protected by the Ruling is degraded into a mere right to curiosity. While the right to curiosity may deserve protection in other fields – exactly when it grants us the right to know information that concerns us, as an exercise of a right to informational self-determination – it cannot supersede other rights with no other justification, if the information in question concerns not only the person him/herself, but also someone who in certain circumstances could not possibly expect it to be disclosed. On the contrary, the injury to the donor’s rights, or indeed to those of the legal parents as well, imposed by the revelation of the former’s identity can present extremely negative consequences.
I would also note that the circumstances which justify this duty of secrecy in relation to the donation of gametes or embryos cannot be confused with the important circumstances surrounding paternity investigations or adoptions, due, quite apart from anything else, to the different density of the right to historicity that underpins each of the cases.
To my mind, historicity implies a social, relational transfer between two subjects: one to live the story and tell it; another to listen to and find out about it (with the latter being the interested party – the child who was conceived). Donation does not entail establishing any such social relationship. There is no living and telling about it. An anonymous donation has no story that relates it to the person who is conceived. It is an essentially biological contribution based on the technique and lacking any social relationship.
This is why the person who is conceived doesn’t have to know the identity of the person who donated. Demanding this of the latter is excessive (all the more so when he/she made the donation anonymously and now sees his/her privacy invaded without any reasonable expectation that that might occur).
I accept that it may be requirable for the origins, conception method and genetic characteristics (as a guarantee of the right to genetic identity) of a person who was conceived in this way to be disclosed to him/her, later on and if he/she asks for it, particularly in order to detect any consanguinity (at the end of the day, his/her genetic origins and heritage, in the sense of characteristics), but that purpose does not justify revealing the donor’s identity. Identification – something that in itself disturbs the donor’s rights – should only prevail as a result of an underlying historicity, and in my view, that requires the existence of a relational, social past filled with memories which may condition the transfer I talked about earlier. The fact is that there is no social relationship in a donation that would warrant disclosure, and this is in turn sufficient justification for making a distinction in relation to other situations in which the personal historicity aspect of a right to personal identity deserves protection – I believe that in some cases, that identification is indeed either indispensable (in order to define a person’s paternity), or possible (as in the case of adoption), which means that this differentiation is not a violation of equality.
For all these reasons, I considered that the solution which imposes the obligation to identify donors in MAP cases goes far beyond that which is necessary in order to fulfil the essence of the right to personal identity, while simultaneously undermining other fundamental rights, which it excessively puts to the test.
6. Because I base myself on the conception of the right to personal historicity which I describe above, I favour a different solution with regard to confidentiality in relation to gestational surrogacy. In this case, there is indeed a history between people, all the more so in that the absence of any element of profit, which I considered indispensable to the gestational surrogacy process, contributes greatly to that history’s existence: there is a life tale to be told.
The right to personal historicity deserves to be valued differently with regard to the surrogate’s part in the gestation and birth, compared to the donation of gametes and embryos. This difference is reflected in my preferred solution to the question of the constitutionality of the norm governing confidentiality in this context. This is why I subscribed to this part of the declaration of unconstitutionality.
Contrary to my position in relation to gamete and embryo donations, I believe that where gestational surrogacy is concerned, the right to personal historicity possesses sufficient density. It thus includes the possibility of knowing how one was conceived and therefore the circumstance that recourse was had to a gestational surrogate, but it should also include the possibility of knowing the surrogate’s identity, without any need to invoke special reasons. In this case, both because of the stable, lasting gestational link between the surrogate and the child, and due to the surrogate’s inevitable connection with the people who outlined a social parental project for the child, it is clear that the child’s personal history – fundamental to the construction of his/her identity – must include information about those relationships, including knowledge of the surrogate’s identity. In these cases, non-disclosure can reflect an important injury to a true right to personal historicity, which other rights pertaining to the legal parents and to donors (such as the protection of the privacy of personal and family life) are incapable of justifying.
7. In short, I dissented from the part of paragraph (e) of the Decision in which the Court finds that the donor confidentiality regime that was in force until now disproportionately restricted the rights to personal identity and the free development of their personality of persons conceived using MAP. This position did not prevent me from agreeing with the Court’s finding of unconstitutionality in relation to the segment of the norm regarding confidentiality in relation to persons who were conceived with recourse to a gestational surrogate.
E.
1. Although I subscribed to the part of the decision set out in paragraph (g) in which, under the terms of Article 282(4), CRP, the Court orders that the effects of the declarations of unconstitutionality handed down in paragraphs (a), (b) and (c) will not apply to gestational surrogacy contracts which have already been authorised by the CNPMA, are in the process of execution and under which the therapeutic medically assisted procreation processes have already begun, I also voted in favour of the limitation of the effects of the decision transmitted in paragraph (e), in which the Court declared the unconstitutionality of the norm contained in Article 15(1) and (4) of Law no. 32/2006 of 26 July 2006.
2. As I stated above, I voted for a finding of non-unconstitutionality of the norm in the part where it imposes an obligation of silence with regard to persons born as a consequence of medically assisted procreation processes using donated gametes or embryos, (specifically) as to the donors’ identities. I found myself in the minority in this respect, in that a majority voted for the declaration of unconstitutionality. Given the consequences which this decision has for situations that arose before it was taken, I find myself obliged to express my vehement opinion that the effects of this part of the Decision should be limited in order not to make the knowledge available to persons who were conceived by means of a donation made under the confidentiality regime (i.e. the effects of the declaration of unconstitutionality would not apply to the cases of persons conceived with recourse to a donor, whenever the donation had already been made by the date of the present decision) – a solution I believe to be required by imperatives linked to legal certainty. My view in this respect is derived in part from the violent breach of trust with regard to those who made their donation while still within a legal framework that ensured its confidentiality. That confidentiality will certainly have been a major factor in their decision, and the regime already offered sufficient guarantees of protection in cases in which there were “weighty reasons” for disclosure. My view is that this abrupt change may have tremendous consequences – which donors were certainly unable to expect – for their right to self-determination in relation to the information concerning them, for the right to the free development of their personality, for their own right to personal identity (inasmuch as the definition of who we are is the product of both that which gives rise to us and also that which we give rise to – or not), and above all for the right to the protection of the privacy of personal and family life. These outcomes are not limited to those derived from the knowledge that the donation in its own right took place, but also extend to those resulting from the fact that a donor may be confronted in personal, familial and social terms with a life that is due to him/her. To want to downplay these consequences for the donor’s personal, family and social life on the grounds that the law does not say that any legal consequences can result from such a donation on the level of legal parenthood, is to forget on the one hand that not everything in life comes down to the law, and on the other that the Constitution protects those other dimensions that are (really) affected by non-legal consequences produced by the lack of confidentiality with regard to the donation. I would recall – above all because it is an inescapable fact – that without that decision to donate – taken under circumstances in which confidentiality was guaranteed, and which was itself a manifestation by the donor of the free development of his/her personality and the exercise of his/her self-determination based on that guarantee – the person who can now claim a right to curiosity would not exist.
In addition, while it is possible to admit that future donors – i.e. those who decide after this decision to go ahead and make a donation, in the knowledge that from now on they have to count on the possibility that people they helped conceive may appear in their life, even without any legal tie, in a way that they are unable to foresee – will not feel that their privacy was excessively affected, because the confidentiality rule has already been removed, it will in my view be absurdly burdensome for such a solution to be imposed on someone who was willing in the past to give of themselves in a way that was totally free of any ties, even non-legal ones, due to the guarantees of silence that were in effect at the time. The different circumstances in which a donation occurred in the past and will now occur should lead to a different balance, requiring a distinction between donors’ rights to the preservation of privacy and the rights of persons conceived in this way to knowledge, depending on the confidentiality rule that was in force when the donation was made. As such, I argued for the limitation of the effects of this particular finding of unconstitutionality.
3. Indeed, I consider that lifting the legal veil on the donation of gametes or embryos in the name of an exacerbated defence of a right to curiosity could open a Pandora’s box with increasingly serious consequences for donors’ rights, in particular as a result of this decision by the Court and the refusal to limit its effects, for those who donated while still in a situation in which anonymity was recognised by the law [and, quite possibly, also consequences for the recipients of the donation, who accepted it in the belief that that same anonymity would be maintained, because they wanted to avoid the interposition of another personal history and the ensuing implication of someone else’s (legitimate) duties and rights]. In the end, this means that at any point in time, donors may also find themselves confronted with the possible aspiration of those who, having been conceived with recourse to their donation, even though it has (as yet) no legal consequences (paternity), want to not only know the identity of their biological father/mother, but also for that identity to (one day) be publicly available (even if it doesn’t correspond to legal/social parenthood), particularly, but not necessarily, in single-parent situations. Although this is not the question at issue here, and it is not up to the Court to decide it, it is easy to anticipate that it will be posed; and to my mind, it is impossible not to take it into account when one weighs up the question of silence in relation to those who donated gametes or embryos in the expectation that their donation would be anonymous.
Catarina Sarmento e Castro
DISSENTING OPINION
For the following essential reasons, I partly disagree with paragraphs (e) and (g) of the Decision:
Like the majority position, and in harmony with the guidelines that are already outlined in this Court’s case law, I consider that the right to personal identity enshrined in Article 26(1) of the Constitution incorporates the right to personal historicity which, in the case of persons born with recourse to heterologous MAP techniques, encompasses the right to know one’s genetic identity, seen as the right to know the identity of those whose genetic material forms a part of the genomic constitution of the person born in this way, and in the case of persons born with recourse to gestational surrogacy, the right to know one’s epigenetic identity, seen as the right to know the full details of the ontogenetic process that preceded their birth.
In full harmony with the majority position, I also share the understanding whereby, if personal identity consists of “the set of attributes and characteristics that make it possible to individualise each person in society and mean that each individual is him/herself and not someone else, different from others”, knowledge of both one’s genetic ancestry and one’s epigenetic heritage is an unwavering precondition for the ability of persons born with recourse to the aforementioned medical techniques to self-define their own identity, providing them with knowledge of their biographical truth and enabling them to attain, by discovering their origins, “safe points of reference of a genetic, somatic, emotional and/or physiological nature”, which are indispensable to all the dimensions of self-understanding that are included in and co-determine a person’s condition as a unique, unrepeatable being.
Again in line with the majority position, I also consider – and in my view this is a key element – that, on the necessary assumption that there is no duty to disclose on the progenitors’ part, it is always up to each person to ask themselves about their own identity, and in the event of any doubt, to take the initiative of seeking to clear that doubt up using the mechanisms that must be made available to them for that purpose.
It is precisely with regard to the nature and amplitude of the mechanisms for accessing information about the identity of one’s gamete or embryo donor and/or gestational surrogate that I find myself at a distance from the majority position.
The fact that the right to personal identity is enshrined in the Constitution, as a right of each person “to know the way in which he/she was conceived”, precludes the legislator from instituting a system that makes it impossible for interested parties to know their genetic and/or epigenetic origins for no other reason than that they want to.
However, unlike the majority, I do not believe that the need to safeguard that right requires the legislator to ensure that access to that information – for the moment, restricted to the interested party – can be gained by all and every means by which such data can be obtained, and particularly by a mere request on the part of someone who – directly, fortuitously or accidentally – has “become aware in any way of the use of MAP techniques, including in gestational surrogacy situations, or of the identity of any of the participants in the respective processes” [Article 15(1), Law no. 32/2006 of 26 July 2006].
On the contrary: given the extremely personal and private nature of the information that is to be provided and the ensuing need to confirm the identity of the person who comes and asks for it, I believe that there is nothing deserving of reproach in the decision to choose a system which, instead of liberalising (or even trivialising) the disclosure mechanisms – thereby making it possible for the elements regarding the identity of the donors of genetic material and/or the gestational surrogate to be obtained informally, in any and all contexts, from any and every person who, irrespective of their role or position (doctor, biologist, administrative, IT specialist, etc.), has accessed them by any means - is based on the requirement for a standardised disclosure process that assumes intermediation by a public body.
While I fully accept that this is the exercise of a potestative right to know one’s origins, at the same time I do not believe that the Constitution precludes the legislator from entrusting that task to the courts, providing for the existence within the scope of a voluntary rather than a dispute-based jurisdiction of an expedite, simplified procedure containing the minimum formalities needed to ensure the probity of the whole disclosure process, particularly by confirming the applicant’s identity.
These are essentially the reasons why I would restrict the finding of unconstitutionality formulated in paragraph (e) to the norm contained in Article 15(4) of Law no. 32/2006 of 26 July 2006, which I consider incompatible with the rights to personal identity and the development of the personality of persons born as a consequence of a medically assisted procreation process that has recourse to donated gametes or embryos and/or gestational surrogacy, only to the extent that, on the one hand, it subjects disclosure of the donors’ identities to the demonstration of other – supplemental to and over and above the mere desire on the part of such persons to know the way in which they were conceived – reasons, and on the other, excludes knowledge of the gestational surrogate’s identity from the scope of the information that can be made available.
Lastly, and as was the case in the United Kingdom when the anonymity rule was abolished (Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004), I would subject the finding of unconstitutionality formulated in this way to the limitation of effects ordered in paragraph (g) of the Decision. I take this view because I consider that, although doing so constitutes a disproportionate restriction on the rights to personal identity and to the development of the personality of persons born as a consequence of medically assisted procreation processes, when the regime laid down in Article 15(4) of Law no. 32/2006 of 26 July 2006 requires applicants to show weighty reasons why the participants’ identities should be disclosed, it does not injure or defer those rights in a way that would impose the need to absolutely disregard the expectations of the persons who donated gametes or embryos, legitimately trusting that their identity could only be disclosed if that condition was fulfilled.
Joana Fernandes Costa
DISSENTING OPINION
I voted in favour of the declaration of unconstitutionality of the norms contained in Article 8(2), (3), (4), (7), (8), (10), (11) and (12), Article 15(1) and (4) and Article 39(3), (4) and (5), all of Law no. 32/2006 of 26 July 2006, in its entirety, in the precise terms and on all the grounds set out in the Ruling.
I would like it to be clear that my vote is not only intended to express my criticism of the provisions which the Court has explicitly declared to be contrary to the Constitution, but also of gestational surrogacy in its own right, as a concept and as a medically assisted procreation technique which in my view violates the dignity of the human person – in addition to being dangerous, from the perspective of human reproduction. Quite apart from anything else, my opinion is founded on a relative valuation of the different interests at stake that places those of the child in first place, those of the surrogate in second place, and those of the beneficiaries in last place.
It does not seem to me that the parallel which the text of the Ruling draws with medically assisted procreation is a full and effective one, given the relevant specificities of gestational surrogacy. In my view, and in the light of the current legal framework, the latter lends concrete form to or deepens a paradigmatic change I hold to be unacceptable, to the extent that in addition to all the defects in the legal construction that are correctly singled out in the text of the Ruling, it degrades a question that is fundamental to the survival of the human species – reproduction – in a matter that only concerns women. It is not that I find this surprising, inasmuch as this drift was regrettably started by the Law governing Medically Assisted Procreation, with its reference to the “protection of the freedom and autonomy of the woman who wants to be a mother”.
The fact is that whatever the law says, whatever the law omits, the conception of a child without a father is as absurd as that of a child without a mother; and if, as a mere exercise in speculation, we were to accept such a possibility, then we would clash headlong with the Constitution.
In truth, regardless of the fact that our Constitution is able to support various types of family, it is clear from Article 68(1) that all children have a mother and a father. Put in a better way: it results from the nature of the human species that every child has a mother and a father – an evident fact which the Constitution limits itself to recognising and proclaiming.
I do not question the legitimacy of thinking otherwise. Nor do I question the intentions, which I believe to be generous, of those who think that way. But I believe that human reproduction is a subject that is too serious to be dependent on technological manipulations with unpredictable consequences. The principle of precaution requires that, at least until the questions, doubts and problems it raises are clarified, gestational surrogacy should be rejected, because it cannot be reconciled with the Constitution. This judgement is shared by a substantial majority of the legal orders that are closest to us, which do not permit it either. I am thus in good and informed company.
João Pedro Caupers
DISSENTING OPINION
With regard to the declaration of the unconstitutionality of the provisions set out in Article 8 of Law no. 32/2006 of 26 July 2006 (with the amendments made to it by Law no. 25/2016 of 22 August 2016), I vote in favour of the Decision, but with a different scope, to the extent that I believe that the consequences of the declaration of the unconstitutionality of Article 8(8), taken in conjunction with Article 14(5) of the aforesaid Law include not only the unconstitutionality of Article 8(7), but also that of the final part of Article 8(1), which requires a prior renunciation by the surrogate of the powers and duties pertaining to maternity.
I vote against the majority decision to declare the unconstitutionality of Article 15(1) and (4), where it concerns the confidentiality regime regarding gamete donors, because I believe the normative solution laid down in the Law falls within the margin within which the democratic legislator is entitled to shape legislation, and does not violate the principle of proportionality.
Gestational surrogacy
In relation to the constitutionality of the norms regarding gestational surrogacy, I vote in favour of the decision, but with a scope and on grounds that differ from the majority position in some respects.
Gestational surrogacy, as an act of generosity and solidarity by one woman towards another, in the situation described in Article 8(2), does not violate the human dignity of the pregnant woman, the infertile couple, or the child who is then born, as the Ruling says. However, the prior control of the fact that the arrangement is free of charge must be particularly rigorous; the a posteriori criminalisation laid down in Article 39 of Law no. 32/2006 of 26 July 2006 is not enough to prevent commercialisation.
Family Law is the branch of Civil Law on which the “constitutionalisation” of Private Law has left the greatest mark, in the sense that many of its norms are the expression of constitutional principles and norms. Examples include the cases of the principle of equality between spouses, the rights/duties included in the content of parental responsibilities, the protection of adoption, and the protection of childhood.
At the same time, while Contract Law is, par excellence, open to private autonomy and contractual freedom, it also contains norms and principles that reflect constitutional norms which enshrine fundamental rights, permitting unilateral promises that are freely revocable and contracts in which one of the parties has the option to revoke their consent. The so-called “personality transactions” or “extremely personal contracts” are valid, but subject to a particular legal regime characterised by both the unrenounceable nature of personality rights and the possibility of restricting the exercise of those rights by means of informed, but freely revocable, consent – i.e. these contracts are not subject to specific execution against the right-holder’s will. Consequently, consent to the voluntary limitation of the exercise of fundamental personality rights must be current – in other words, it must exist at the moment of the injury, and any prior renunciation of those rights is invalid.
The specific execution of the gestation contract – enabling the beneficiaries to ask for a court order to hand the child over (Articles 49-50, Law 141/2015 of 8 September 2015) and to bring a criminal complaint for abduction of a minor (Article 249, CP) against the surrogate if she refuses to hand the child over at the moment of his/her birth – would be particularly serious for the surrogate and a lack of respect for the dignity and fundamental rights of a person who acted for altruistic reasons.
The physical and psychological effort needed to carry a pregnancy to term make the gestational surrogacy contract a unique transaction, which touches on the surrogate’s fundamental personality rights. This contract has repercussions for both the legal status of persons, and their personal family rights, which have traditionally been recognised and moulded by imperative norms from which the role of private autonomy has been excluded. As the Constitutional Court has acknowledged in its case law (see Ruling no. 401/2011, among others), the establishment of filiation has always corresponded to interests of a public nature.
The freedom to form a family and to establish the legal maternity tie with the child conceived in this way are fundamental rights pertaining to the surrogate, which she, under the terms of Article 8(1), voluntarily renounces before the therapeutic processes needed for the pregnancy to occur begin. However, the protection the Constitution affords to the fundamental rights requires that this consent be current – in casu, to be given at a moment in time after the birth, within a time limit which it is up to the legislator to define (for reasons of legal certainty and the need to protect childhood). The norm which provides for the renunciation of these rights to occur irrevocably and in advance – i.e. before the pregnancy – as stipulated by the legislator in the final part of Article 8(1), taken in conjunction with Article 8(7), both of Law no. 25/2016 – is not in conformity with the Constitution. I consequently also consider the last part of Article 8(1) unconstitutional, because it is in breach of both the surrogate’s right to the free development of her personality and her right to establish the legal maternity tie with the child she conceives. It is true that the solution I favour limits the efficacy of gestational surrogacy contracts from the point of view of the beneficiaries’ interests, rights and expectations, but inasmuch as this is the solution the Constitution demands where the renunciation of personality rights is concerned, it should also apply to the renunciation of fundamental rights by the surrogate. This is the case, above all because these family rights refer to a domain – the establishment of filiation – that is resistant to private autonomy and is guided by principles of a public nature that preclude making birth the object of a transaction or extinguishing maternity or paternity ties.
As such, I subscribe to the majority position in the Ruling in relation to the declaration of the unconstitutionality of Article 8(7), but I believe that legal logic means that this also entails the unconstitutionality of the part of Article 8(1), in fine, which requires the surrogate to renounce the rights and powers pertaining to maternity in advance. If the requirement that filiation in favour of the beneficiaries be automatically established by law, with no possibility for the surrogate to revoke her consent, is not in conformity with the Constitution, then for the same reason the advance renunciation of fundamental rights provided for in the final part of Article 8(1) cannot be constitutionally acceptable either.
Having said this, because the legal status of a child and his/her fundamental rights, including the right to full development [Article 69(1) CRP], are at stake here, the ability to exercise the free revocability of limitations on the surrogate’s personality rights should, in this context, only exist for a defined length of time. The thing is that in this respect, the Ruling presents a solution which creates uncertainty for the stability of the child’s loving/emotional relationships. This is because the point of reference for the revocation of the consent is the moment when the child is handed over to the beneficiaries – a moment which, according to the Ruling, depends entirely on the surrogate’s discretion. This proposed solution makes it possible for bonds to develop between the surrogate and the child over a long, indeterminate period of time which, in the event of a conflict, generates a traumatic situation for children whom the court then decides should be separated from the surrogate and handed over to the beneficiaries.
The surrogate’s consent to the voluntary limitation of her personality rights must be current, and must thus be given at a point in time after the birth and within a time limit laid down to be established by the legislator, using the deadline of six weeks after the birth in which a woman can validly and irrevocably consent to her child’s adoption [Article 1982(3), CC] as a reference. This presupposes both that maternity be established in relation to the surrogate at the moment of the birth, and the existence of a judicial model for acknowledging parenthood, whereby the courts can recognise parenthood as pertaining to the beneficiaries (the “intended parents”). This system, in which parenthood is established by the courts (parental orders) has been in effect in the United Kingdom since 1985, without risks, with surrogates handing over children and consenting to the transfer of parenthood to beneficiaries (see Surrogacy in the UK: Myth busting and reform, Report of the Surrogacy UK Working Group on Surrogacy Law Reform, November 2015). I do not share the majority view expressed in the Ruling that the consequent unconstitutionality of Article 8(7) does not undermine the “Portuguese model” for regulating gestational surrogacy. A system in which, on the one hand filiation in relation to the beneficiaries is automatically established by law at the moment of the birth, but on the other, filiation can be extinguished by means of a unilateral act of will, is conceptually impossible. Nor would it be viable for parenthood to be automatically transferred by law from the surrogate to the infertile couple at the moment at which the child is handed over, with no act of judicial recognition, given that the timing of that moment is at the pregnant woman’s discretion and is thus uncertain, and that uncertainty is not compatible with either the interests of the children, or the principle that a person’s status should be stable.
Anonymity of gamete donors
I dissented in relation to this question, because I think the Constitution does not demand that the civil identity of the donor be disclosed to the person conceived by heterologous MAP when he/she makes a simple request to that end to administrative bodies. I believe that the current legislation, which allows a person conceived by heterologous MAP to both know the donor’s identity by proving before a court that there are weighty reasons for it, and gain access to genetic information about the donor, lies within the margin within which the democratic legislator is entitled to shape legislation. It is the legislator’s prerogative to assess the cultural traditions and social reality within which the law is going to be applied, and to define, in accordance with the principle of proportionality, what it considers to be the most appropriate solution for resolving the conflict that is present here between the right to know one’s biological identity and the beneficiaries’ rights to form a family and to the protection of family life and privacy.
The arguments which the Ruling uses to justify the unconstitutionality of the law reflect a prevalence – not adapted to such families’ feelings – of the biological truth over the emotional and social truth, all the more so in that the Law unequivocally says that a donor is not a father and does not possess the rights and duties pertaining to paternity. On the other hand, any analogy with the recent broadening of the right to know one’s origins within the legal “institute” of adoption (Law no. 143/2015) is not valid. In adoption, the state looks for parents for children who already exist and have a personal and relational history with biological parents that predates their handing over to the adopters. In most cases, adoptees have cohabited with their biological parents, from whose care the state has removed them in “child protection proceedings”. Even in cases in which the mother has consented to the adoption of a new-born child, the biological parents are part of his/her history, inasmuch as knowing the reasons why he/she was given up can correspond to a strong need to reconstruct his/her personal historicity that has no parallel with or similarity to knowledge about a donor whose act was only intended to help a couple with fertility problems, and who never had any relationship with the child or gave up or abandoned him/her.
Comparison with the time limit on legal paternity investigation actions in cases in which fatherhood is unknown adds no validity to the argument which the majority offers in the Ruling when it argues that, in the case of the right to know the personal identity of the donor, the information about the latter’s identity is available and the donor will not be deemed to be the father. However, from my point of view the current prescription rules with regard to paternity investigations constitute a much stronger limitation on the right to personal identity than the general principle of donor anonymity (with the exceptions provided for by law), because the putative father had a history with both the mother of the person who brings the suit (the son or daughter) and the latter, and may even have known his child and established loving emotional bonds with him/her. At the same time, the moral injury suffered by the son or daughter who is prevented from investigating his/her paternity because his/her birth certificate doesn’t contain his/her father’s identity doesn’t exist in the case of heterologous MAP, where the child already has a family in both legal and emotional terms. The argument drawn from the regime governing the prescription of paternity investigation suits is valid, but in the opposite sense to the one proposed in the Ruling: if the Constitutional Court accepts the constitutionality of prescription limits on bringing paternity investigation suits, then it should also accept the constitutionality of the current donor anonymity system, in which at stake is an individual who only wanted to help with the reproduction process, but from whom the Law takes away any possibility of assuming paternity (or maternity, in the case of a female donor) and who never had any procreative sexual relations with the legal parent of the person who was conceived with gametes from a male or female donor. Particularly at stake in paternity investigation suits is not only the right to personal identity of the son or daughter in a biological sense, but also the right to personal historicity, together with an extremely important public interest: the need to make the person who conceives a child be responsible for him/her. This is an interest that is entirely lacking in the case of donors, whom the state has exempted from any parental responsibility.
In the Constitutional Court’s case law, the principle of proportionality, seen as a control instrument, possesses a practical importance that differs depending on the circumstances of each case, the nature of the conflicting values and the margin within which the legislator is recognised to possess the ability to shape legislation. Under the terms of the Law, restricting the right to know one’s origins with reference to the donor is a measure which is required by a strong goal – the privacy of the family and the right to form a family – and which does not exceed that which is just and strictly necessary in order to safeguard other constitutionally protected interests [second part of Article 18(2), CRP].
One must presume that when the legislator amended the MAP Law to make it more appropriate to the way in which society is evolving, opening the use of reproductive techniques to single women and female gay couples (Law no. 17/2016) and regulating gestational surrogacy (Law no. 25/2016), it took the view that the current solution regarding the anonymity of gamete donors is the one that is the most appropriate in the light of the conflicting interests. When what is at issue is the right to know one’s origins, every legal order applies a method for determining the relative weight of different values, finding a variety of solutions, all of which are constitutionally admissible on condition that they do not imply the total elimination of a right.
The European Court of Human Rights has been particularly restrictive with regard to the admissibility of the right of adopted persons to know their origins, and has never pronounced itself on the legal regime governing donor anonymity. Contrary to the convictions which the majority expresses in the Ruling, if any guidance is to be found in the ECHR’s case law, it is that the right to know one’s genetic identity must be restricted in order to safeguard the rights of the other persons involved to the protection of privacy and family life (see Odièvre v. France).
Ruling no. 101/2009 clarified that the extent of the right to know one’s genetic origins differs depending on the context in which personal identity is developed. In that case, the Constitutional Court proposed solutions entailing balance or practical harmony that safeguard the peace and privacy of family life. That Ruling thus provides the bases for saying that the legal positions contained within the right to personal identity enjoy a different constitutional protection, depending on whether the right is invoked in the context of the legal “institute” of adoption, the donation of gametes for heterologous MAP, or a paternity investigation suit.
Adoption is a legal “institute” that is much older than heterologous MAP, and studies have looked at the search for genetic identity in an adoptive context, producing empirical evidence that only a minority of adoptees seek to know the identity of their biological parents and that the so-called phenomenon of genealogical bewilderment possesses no scientific validity (see E. Wayne Carp, Family Matters, Secrecy and Disclosure in the History of Adoption, London, pp. 155-157). In Portugal, the Social Security Service has always advised adoptive parents to tell the child his/her story, and since the entry into force of Law no. 143/2015 of 8 September 2015, on reaching the age of sixteen years adoptees have had the right to gain access to the identity of their biological parents, via the official social security system and with psychological and technical counselling provided by the state. However, this legislation is the fruit of an evolution – before 2015, that identity could only be disclosed to an adoptee if he/she demonstrated to a court that there were weighty reasons for allowing him/her to consult his/her file.
Families who resort to heterologous MAP do not generally tell their children how they were conceived (see Rothstein/Murray/Kaebnick/Majumder (edited by), Genetic Ties and the Family, The Impact of Paternity Testing on Parents and Children, The Johns Hopkins University Press, 2005). There are several reasons for this: it is in the child’s own interest for social parenthood to prevail over genetic identity; there is a lack of support from health services in this regard; and the dominant culture stigmatises the use of such reproductive techniques, and their disclosure can lead to family conflicts for the persons involved. At the same time, states are afraid that the problem of access to fertility treatments will worsen, in a world context in which the demand for gametes is higher than the offer (see E. Ignovska, “Sperm donors as assisters of reproduction in single women”, Global Bioethics, 2014, vol. 25, no. 4, pp. 226-238).
It is true that this cultural environment is tending to evolve and to reach a state in which the collective consciousness sees assisted reproductive techniques as natural, and the principle/rule of anonymity rule ceases to be necessary. However, it is solely up to the legislator to make that assessment and change the system, when it believes that that change is appropriate to the current reality; this is not the job of the Constitutional Court, which cannot substitute itself for the legislator in that assessment process. Comparison with the evolution taking place in the Scandinavian countries, which have revoked the donor anonymity system, in no way constitutes a valid argument in the domain in which the Court is called on to consider the constitutionality of norms; it only goes to prove that this is a matter that falls within the exclusive competence pertaining to the democratic legislator, which regulates it in accordance with its assessment of society. Moreover, and notwithstanding the cultural differences between Portugal and the Nordic countries, where the mentality is more open to heterologous MAP, even in the latter, in an initial phase the breach of donor anonymity led to a fall in the number of donors – an outcome which, in Portugal, could make it harder for persons with fertility problems to gain access to the treatments to which they are entitled.
The majority choice in the present Ruling not to limit the retroactivity of the effects of the declaration of unconstitutionality of the donor anonymity regime, under the terms of Article 282(4), CRP, is also problematical. It undermines the legal certainty available to donors and their rights to the private and personal nature of their family life, without bringing any relevant advantage for persons conceived by means of MAP, who, in that which concerns their historicity and personality, tend to value above all the role of their legal and social parents – the only ones with whom they have family and loving relationships – and not the genetic contribution made by the donor.
With regard to the anonymity of surrogates, the legislator laid down a regime that totally does away with the right to know one’s origins and, as the Court has found in the present Ruling, does not pass the test of constitutional admissibility. In this respect, when we consider the conflict with other fundamental rights, the relative weight attached to the child’s right to know his/her origins must be greater, inasmuch as during the pregnancy there is a relationship between the surrogate and the foetus which makes her contribution to the procreation process completely distinct from that of gamete donors. As a result, the margin within which the legislator is able to shape and restrict the fundamental right to know one’s origins is smaller. Consequently, the regime whereby the right to know the surrogate’s entity is completely eliminated is not compatible with the part of Article 26(1), CRP, that enshrines the right to one’s identity and personal historicity. At the same time, family habits in cases in which they have recourse to gestational surrogacy are very different from their practices in relation to heterologous MAP. In a study conducted in the United Kingdom, 94.3% of surrogates kept in touch with the children to whom they gave birth, 87.3% of them said that the beneficiaries intended to tell the child how he/she was conceived, and the majority of beneficiaries (“intended parents”) also said they wanted to tell their children that they had used this form of gestation, with most of them effectively disclosing that fact to the children while they were of preschool age (see Surrogacy in the UK: Myth busting and reform, Report of the Surrogacy UK Working Group on Surrogacy Law Reform, November 2015, pp. 20 and 23).
Maria Clara Sottomayor
DISSENTING OPINION
We dissent from paragraphs (b) and (c) of the Decision, essentially for the following reasons:
1. The Court was called on to review the norms which allow the use of gestational surrogacy, are contained in the various paragraphs of Article 8, LPMA, and under the terms of which the legislator laid down what is known as the Portuguese gestational surrogacy model. This normative system is derived from a range of choices which the democratic legislator made in relation to a topic that is acknowledged to be very delicate and controversial (both in Portugal and internationally), permeated with highly complex axiological/legal questions and dominated by the difficult task of harmonising the rights of the persons who must necessarily play a part in the process: the beneficiaries, the gestational surrogate, and the child.
As the Court notes in the Decision, the Comparative Law panorama demonstrates the diversity of normative responses to this problem, with legal models which not only do not recognise, but penalise gestational surrogacy in every case, others which accept and regulate it in a more or less broad and friendly manner, and others still which constitute intermediate normative solutions. In the latter, the legislator responds to the large number of conflicting rights by looking for a point of balance between, and reasonable distribution of, the risks and sacrifices, while always safeguarding the best interests of the children who are born via gestational surrogacy. The legal regime instituted in Article 8, LPMA, seeks to form part of this third category.
As laid down in the Law, the normative system instituted by the Portuguese legislator is based on a combination of a contractual gestational surrogacy model and a model for legally recognising parenthood. Although functionally dependent on or interconnected with one another – in the sense that establishing parenthood presupposes a gestational surrogacy that has actually occurred – these models are nonetheless based on specific, autonomous judgements of relative weight, which in turn respond to concerns of different natures or orders. The contractual gestational surrogacy model is founded on the requisite for a formalised convergence of two acts of will. Their contents differ, but do not conflict with one another, in that both come together to achieve the same (and sole) end: on the part of the beneficiaries, the will to be parents of a child who is genetically theirs (or of at least one of them), by means of a gestation undertaken by the surrogate; and on the latter’s part, the will to undergo the pregnancy and give birth to a child who is genetically the son or daughter of both (or at least one) of the beneficiaries. The object of the agreement of wills established between all the parties is thus the gestation of a genetic child of the beneficiaries – in the case of what seems likely to be the most common hypothesis, both the beneficiaries – in the womb of another woman. In this respect, the legislator both presupposes and guarantees that when they give their consent to this end, both parties – the beneficiaries and the gestational surrogate – exercise their autonomy of will in a free and informed way, without infirmities that would invalidate the arrangement.
In the segment in which it sets out the contractual gestational surrogacy model, the regime laid down in Article 8, LPMA, regulates the requisites governing the consent which everyone who intervenes in the process must provide and which constitutes an assumption or condition for an agreement to be valid and effective – i.e. an agreement that is capable of leading to application of the special criterion for the establishment of parenthood laid down in paragraph (7). It also provides for occurrences that may possibly take place within the scope of the gestation process due to a change in the will initially expressed by any of the parties which then affects the consent that was given: on the beneficiaries’ side, the desire to interrupt the process once it has already begun; and on the part of the surrogate, the desire not to undergo – or to no longer undergo – the pregnancy on their behalf.
Contrary to the assumption made in the position taken by the majority, the child’s legal filiation tie is not established by the contractual gestational surrogacy model, and therefore cannot be affected in the same manner as the way in which the gestation process unfolds can – i.e. by a change in direction in terms of the will that was initially expressed by the parties. The fact is that when Article 8(7) outlines a model for the legal recognition of parenthood in the beneficiaries’ favour, the LPMA lays down an exceptional criterion for establishing filiation – one that derogates the general criterion for the establishment of legal maternity and paternity set out in Article 1796, CC and is applicable to all valid and effective gestational surrogacy contracts. This exceptional criterion – in which “The child who is born with recourse to gestational surrogacy shall be deemed to be the son or daughter of the respective beneficiaries” – not only takes account of the option that is inherent in the Portuguese legal system, whereby the choice of the legal parent from among the various persons who are capable of being configured as such or are pertinent in this regard is made by law; it is also underlain by a weighing-up process based on two essential aspects of the situation. The first lies in the recognition that although the surrogate’s participation in the parental project underlying the gestational surrogacy is as altruistic as it is indispensable, she is not a coprotagonist in it, nor do those reasons make her one – the project is based on the will of the beneficiaries who contributed their genetic material to take on the role and the status of father or mother; and that the sole purpose of that contribution and of the project as a whole was to make it possible to conceive and gestate a child who is (also) legally theirs. The second concerns the requirement that there be a genetic link between the child who is to be conceived and at least one member of the beneficiary couple, together with the absolute exclusion of the possibility that, in cases in which it is also necessary to use donated female gametes, the oocytes be donated by the surrogate.
The fundamental choice made by the legislator thus entailed adopting a contractual model associated with a major intervention by public authorities and the legal recognition of filiation at the moment of birth, immediately defining full parental responsibilities in favour of the beneficiaries from that moment on. This option offers the additional benefit of resolving what has proven to be one of the key (and traumatic) moments in the whole process: the handing over of the child to the beneficiaries by the surrogate, especially if it is preceded by a dispute derived from the existence of alternative parental projects.
The fact is that the declaration of the unconstitutionality of the norms contained in Article 8(7) and (8), LPMA, in the part whereby the surrogate is not allowed to revoke her consent at any time up until she surrenders the child to the beneficiaries – a revocation that would, under the general terms of the law, mean that she would assume the parental responsibilities incurred as a result of the birth – affects one of the main foundations of the regime and causes it to collapse. As we have seen, the terms under which the legislator has permitted gestational surrogacy inherently include the decision to lay down a criterion for establishing legal parenthood that is not based on the natural or biological fact of the birth [which is the option adopted in Article 1796(1), CC], but rather on the predominant genetic link to the new person, within the context of an initial maternal and paternal project assumed by the beneficiaries. The possibility of revoking the consent at the moment of the birth, with a view to the surrogate assuming maternity – thereby rendering the filiation of the child who has been born uncertain for a length of time which can’t even be predicted – not only takes away the whole sense of the gestational surrogacy, but also makes the establishment of filiation dependent on the surrogate’s will, in a domain in which both the principle that a person’s status cannot be changed except by the state and a constitutional imperative mean that legal filiation ties must be determined in advance by law.
Furthermore, in practice, the assumption that this will lead to the emergence of disputes between the surrogate and beneficiaries as to whose son or daughter the new-born child should be deemed to be, whereupon the state’s duty to protect the child requires the creation of a legal path whereby the beneficiaries can ask a court to order the contested transfer of legal parenthood to them – a system which comes close to the model under which a court issues a parental order – reduces the legislator’s options to just one: that of a judicial recognition of parenthood after the birth (the so-called fast-track adoption system, as the current UK model is often characterised; see e.g. “Comparative Study on the Regime of Surrogacy in EU Member States”, European Parliament, 2013, p. 58). In other words, the declaration of the unconstitutionality of those norms means that in the future, the implementation of a true and specific gestational surrogacy regime will no longer be viable. This contradicts the Court’s earlier finding – with which all of the signatories of this Opinion agreed at the time – that the existence of such a regime is not in itself incompatible with the principle of the dignity of the human person, and to that extent is constitutionally permissible.
2. We believe the majority was mistaken in two respects when it reached this conclusion.
The first concerns the characterisation – and ensuing categorisation – of the gestational surrogacy model instituted in Law no. 32/2006 of 26 July 2006: the majority does not see the decision to opt for the establishment of a filiation criterion by law, as set out in Article 8(7), LPMA, as the logical corollary – or even, as we will see further down, a possible corollary – of the raison d’être of the choice of the format in the first place; on the contrary, in assuming that the surrogate’s consent not only encompasses the will to undergo a pregnancy on the beneficiaries’ behalf, but also the will that the child to whom she is going to give birth will not be deemed to be her son or daughter, the majority considers that, as far as the latter sense is concerned, such consent serves to constitute – or at least co-constitute – the filiation tie referred to in Article 8(7), LPMA; and the only meaning which the majority therefore ends up attributing to the latter precept is that of designating the subjects in whose favour the surrogate can renounce the “powers and duties pertaining to maternity” – a renunciation deemed indispensable to the formation of that tie.
However, this understanding of the regime laid down in Article 8, LPMA, entails a decontextualised and teleologically misaligned interpretation of the final segment of the Article’s paragraph (1), the outcome of which is to place under the aegis of the contractual gestational surrogacy model – and as a consequence, within the scope of the effects that might be associated with the revocation of the consent due to a change in the will of the surrogate – aspects which, because they directly conflict with the establishment of the new-born child’s filiation, were intentionally shielded from any vicissitudes in the (necessarily contingent and unpredictable) contractual relationship between the parties by choosing a model whereby legal parenthood is recognised by law.
According to the model set out in the LPMA, the filiation tie of a child born as a result of this process is derived from the law and not the contract: although that tie presupposes a valid and effective gestation contract, it is not the result of any of the acts of will on which the gestational surrogacy contract is founded; and consequently, it cannot be affected by any change in the will underlying those acts, particularly that expressed in the revocation of the consent which was previously given. While the gestational surrogacy constitutes the result of both the exercise – which must be free and informed – of the right to self-determination pertaining to all the parties to the process, and the autonomy of their will, the definition of the child’s title of filiation is instead based on a balancing judgement made by the democratically legitimated legislator. This is a judgement which – rooted as it was in the prevailing consideration of the parental project and the genetic bond which connects, if not both, at least one of the beneficiaries to the child born by means of the gestational surrogacy – can hardly be considered inappropriate, unreasonable or arbitrary.
The second mistake (partly derived from the first) lies in the way in which (by assuming that the legal parenthood of the beneficiaries can only be based on the surrogate’s consent) the majority establishes, within the scope of this multifaceted relationship – which requires us on the one hand to consider the surrogate’s rights to the development of her personality [Article 26(1), CRP] and to form a family [Article 36(1), CRP], and on the other the new-born child’s status as a subject of rights [Articles 1, and 67(2)(e), CRP], the state’s duty to protect childhood [Article 69(1), CRP], and, finally, the democratic legislator’s freedom to shape legislation, as reflected in the establishment of a legal criterion for filiation in favour of the beneficiary couple – the connections that underpin the finding of unconstitutionality.
In order to reach the conclusion that the legislator restricted the surrogate’s rights to the development of her personality and to form a family in a way that is incompatible with the principle of the prohibition of excess, the majority takes the view that the surrogate’s freedom of action, which is essential to safeguarding her dignity, will only not be affected if and to the extent that provision is made for her to exercise her decision-making autonomy throughout the entire gestational surrogacy process. It does not follow from this understanding, which is unquestionable in its own right, that the establishment of the filiation of the child born by gestational surrogacy constitutes – let alone that it cannot, in any way, fail to constitute – a moment or phase in the gestational surrogacy process that still falls within the scope of the surrogate’s freedom of self-determination, in such a way that if the surrogate forms her own parental project at a certain point in the execution of the process, her project must compete with the beneficiaries’ one on exactly the same terms, as a legal criterion for filiation.
3. The Court’s finding of unconstitutionality with regard to the aforementioned norms, on the grounds that they violate the surrogate’s right to the development of her personality, is derived from the view that the surrogate’s right of “regret” or to “change her mind” must be guaranteed for the maximum period of time, ceasing only at the moment when she surrenders the child to the beneficiaries to whose parental project she adhered. This conclusion – that, in order to ensure the gestational surrogacy regime’s viability in the light of the dignity of the human person, it is imperative that it be possible for the surrogate to revoke the consent referred to in Article 14(5), LPMA – assumes the premise that, although the existing framework is not inappropriate or insufficient in order to effectively protect the surrogate’s freedom and her need to be informed at the moment when she enters into the contract and gives her consent, the same cannot be said in relation to every phase of the execution of the agreement of wills, due to the unavoidable unpredictability of the vicissitudes that can happen when a person is subjected to MAP techniques, pregnancy, birth and the postpartum period.
The fact is that we do not believe that the validity of that premise is demonstrated in such a way as to provide the grounds – even in a more intense scrutiny of the norms in question due to the density of the constitutional values that are at stake here – for criticising the legislator’s choice with regard to those norms.
We naturally don’t question the fact that being subjected to medical acts like those implied by a medically assisted procreation process, and more intensely still, by the ensuing pregnancy, childbirth and puerperal period, entail risks to a person’s health (obviously including mental health) and constitute phenomena that deeply affect the surrogate as a whole. In this respect, both the biological or physiological aspects and the psychological and emotional ones are important, as are the interactions with both the beneficiaries and the surrogate’s own family (including her spouse and children), and add more problems to those which normally face women who become pregnant as part of their own parental project. However, to say that there is inevitably a major possibility that the surrogate may not have enough information about all these variables in such a way as to be incompatible with the affirmation of her personality is to make a leap which the majority felt equipped to undertake, but which we believe is not supported by any significant empirical evidence.
In particular, this premise is not stated in the opinions issued by the CNECV – let alone Opinion no. 63/CNECV/2012 – or the transcribed segment of the report which its President, Miguel Oliveira e Silva, drew up as part of the preparatory work for that Opinion. The only thing he does say in this regard is that “pregnancy is a vulnerable time”, while also outlining the reasons why one should recognise the existence of an enduring biological link at the epigenetic level between every new-born and the woman in whose uterus they were conceived (see § 43 of the Ruling).
What is more, nor do the many empirical studies on the topic offer us a clear response that is reliable enough to support the assertion made by the majority in its conclusion. Some studies instead indicate that a large majority of gestational surrogates are fully aware of the risks involved, to the extent that such risks can effectively be grasped by individuals in general (see LINA, PENG. “Surrogate Mothers: An Exploration of the Empirical and the Empirical and the Normative”, American University Journal of Gender Social Policy and Law 21, no. 3, (2013): pp. 555-582; V. JADVA, S. IMRIE, S. GOLOMBOK, “Surrogate mothers 10 years on: a longitudinal study of psychological well-being and relationships with the parents and child”, Human Reproduction, Vol. 30, no. 3 (2015), pp. 373-379, doi:10.1093/humrep/deu339; KAREN BUSBY and DELANEY VUN, “Revisiting the handmaid’s tale: feminist theory meets empirical research on surrogate mothers”, 26 Can. J. Fam. L. 13 (2010), pp. 13-94, referring to forty empirical studies on surrogates’ characteristics and experiences in Canada, the USA and the UK).
As such – and indeed, the majority acknowledges it in the Ruling (§ 26) – the commitment the surrogate makes to the beneficiaries is projected throughout the gestation period, the birth and even afterwards, given that she undertakes to take the various forms of care designed to prevent the risks that are common to any pregnancy – something that necessarily involves the capacity to anticipate those risks (as far as possible, of course). Not even health professionals can ever completely eliminate the uncertainty in this respect, but this is not grounds for denying that the pregnant woman’s consent is conscious or current, for example in cases of amniocentesis or a caesarean section.
At the end of the day, the legislator took the care to stipulate an array of information that must be provided to the surrogate [Article 14(2), (5) and (6), LPMA], and to require that the consent be given personally, in the presence of the doctor in charge [Article 14(1), LPMA], who is placed under an express legal duty to ensure that her will in this act is fully informed about all the known and foreseeable benefits and risks in every phase of the process, along with the applicable ethical, social legal and biological implications.
4. The majority position entails placing the gestational surrogate at the centre of the whole process, occupying a preponderant place among the various interests at stake both before and after the birth, in that, as we have seen, she is ensured a parental title which blocks the obligation to surrender the child unless a court says otherwise (and it is hard to see what form of court proceedings might be applicable in such a case).
We concede that this may have been the legislator’s choice when it decided the details of the regime. What we do question, however, is whether this model is imposed by the Constitution, thereby invalidating any norms that do not allow the surrogate to revoke her consent to the extent decided in the Ruling.
The child’s importance to the beneficiaries and theirs to the child must not be forgotten or downplayed. Without the beneficiaries’ initial decision and perseverance in overcoming the absolute and definitive impediment to pregnancy, or whatever other clinical situation justified the recourse to gestational surrogacy, that child would not exist. What is more, the genetic contribution made by at least one of the beneficiaries (and not by the surrogate, who is precluded from donating oocytes) means that the respective genetic code contributes to the unique, unmistakable reality of the person/being who is born by means of gestational surrogacy; and it does so at least on a par – and without seeking to establish any form of ranking here – with other biological, epigenetic and gestational bonds that play a part during the gestation. Seen from a psycho-emotional perspective, nor is it possible to disregard the beneficiaries’ investment in both the parental project and their part in accompanying the whole process of the pregnancy and childbirth either.
At the same time, the norms in question themselves form the outline of a normative system that is both clear and safe with regard to this point (the same is not true of other aspects of the regime, but this does not invalidate what we have just said), preventing conflicts over the child between the beneficiaries on the one hand and the surrogate on the other – questions that would inevitably drag on in the courts and whose effects could potentially harm the child’s development. One can also argue whether the length of time during which the surrogate has the right to change her mind about handing the child over to the beneficiaries (which it is up to the legislator to define, but which, for the purposes of the argument here, may well be similar to that applicable to a mother’s consent for her child to be adopted: six weeks following the birth) will not actually promote that which one wants to avoid – i.e. that the surrogate initially gives her consent without properly weighing up all the implications and risks to which she subjects herself and about which she is profusely informed, and then reacts to any vicissitude she sees as negative or is simply unexpected, in a way that similarly fails to properly consider the matter, but in the opposite sense. During the post-partum period, for example – a period that is known to be sensitive and is not infrequently marked by psychological difficulties or even depressive pathologies.
In our view, inasmuch as the Court is not in a position to positively state that there is a shortfall in the protection of the surrogate’s ethical and personal autonomy throughout the surrogacy process, or even after the birth, there are no grounds on which to condemn the legislator’s decision to only allow her to revoke her consent up until the therapeutic MAP processes begin, rather than until the child is handed over to the beneficiaries, and consequently to declare the unconstitutionality of the norm whereby the child born with recourse to gestational surrogacy is deemed the son or daughter of the respective beneficiaries.
Furthermore, when it assumes that considering the alternative, competing parental project which the surrogate has adopted in the meantime as the solution to the need to safeguard the child’s position as a subject of rights (therefore including the right to personal identity) – a solution it sees as one which, if not positively called for, at least has the ability to achieve that end – the majority position causes us the utmost perplexity.
Although the majority considers both the need to consider the surrogate’s supervening parental project and the possibility that it may prevail over the project in which the protagonists are the beneficiary couple to be imperative in constitutional terms, the position conveyed in the Ruling fails to take account – at least to the full extent foreseeable – of the consequences that such a solution may bring with it: if the surrogate’s project goes ahead, will her title to maternity of the child be based on the provisions of Article 1796(1), CC, or will it be constituted by a court order? If the surrogate is married, will establishing maternity in her favour trigger the presumption laid down in paragraph (2) of the same Article – i.e. will her spouse be deemed the child’s father? If the surrogate isn’t married, only her maternity could be recognised by a court – a hypothesis in which the child, who is the beneficiary couple’s genetic son or daughter, would be deprived of a father – or could or should paternity, which would also have to be established, pertain to the biological father? In the latter hypothesis, would it be acceptable to impose on the biological progenitor the paternity of a child whose mother will be a woman other than the one with whom, in a core manifestation of his freedom of self-determination, he chose to share the parenthood of a child they wanted to be common to both of them?
The majority position and thus the Court’s Decision inevitably open the door to this whole range of queries, and make it at least highly questionable that the obligation to ensure the child’s rights and the state’s duty to protect the child can be invoked in order to conclude in favour of the imposition of a solution which, albeit guided by the best interests of the child (as is the case in all judicial disputes concerning minors) in the face of a conflict between competing parental projects, requires the replacement of the model whereby parenthood is recognised by law to pertain to the “intended and genetic parents”, by a model in which a court establishes filiation based on a case-by-case (and therefore contingent and disputable) evaluation of the specific circumstances.
Fernando Ventura, Lino Ribeiro, Joana Fernandes Costa, Claudio Monteiro
[1] In order to make this dissenting opinion easier to read autonomously, there follows a transcription of the initial version of Article 8, LPMA, which was maintained until 2016:
Article 8
Surrogate motherhood
1 – Surrogate motherhood transactions, be they free of charge or for-profit, are null and void.
2 – “Surrogate motherhood” is taken to mean any situation in which the woman is willing to undergo a pregnancy for someone else and to surrender the child after the birth, renouncing the powers and duties pertaining to maternity.
3 – A woman who undergoes a surrogate pregnancy of someone else shall, for all legal purposes, be deemed the mother of the child who is then born.
[2] The definition of the details of the concept of beneficiaries does not result from the specific passages of Article 8, LPMA, that are in question here [paragraphs (1) to (3)] – indeed, they are not the outcome of any part of Article 8, and it is far from clear that they are derived from any other provision of either the aforesaid Law or Regulatory Decree no. 6/2017 of 31 July 2017 (and indeed, the Constitution would preclude the latter from defining them). As the Ruling emphasises, that “definition” was undertaken (was “deliberated”) by the National Council for Medically Assisted Procreation (CNPMA) in its Decision no. 19-II/2017 of 20 October 2017 (“Interpretation of the concept of beneficiaries for the purposes of recourse to gestational surrogacy”), as follows: “(…) for the purposes of the possibility of entering into gestational surrogacy contracts, only heterosexual couples or couples formed by two women, who are married or live under conditions that are analogous to those of spouses, may be deemed beneficiaries”.
[3] Indeed, it is on this basis that some authors say that it is not appropriate to apply the “object formula” to questions linked to bioethics, and concretely that it cannot serve as a basis for assessing questions regarding reproductive rights in general and gestational surrogacy in particular. This is the case of Jorge Reis Novais (A Dignidade da Pessoa Humana, vol. II, Dignidade e Inconstitucionalidade, Coimbra, 2017, pp. 120/121), whose work is mentioned in the Ruling.