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Legal Opinion On Surrogacy Proceedings In Greece

By March 31, 2015 No Comments

Presentation Surrogate motherhood programs in Greece

 

Surrogacy in Greece is explicitly foreseen by the Article 1458 of the Greek Civil Code, as introduced by the article 8 of the Law 3089/2002. The law provision reads as follows:

The transfer of a fertilized ova into the body of another woman (the ova should not be hers) and the pregnancy by her is allowed by a court authorization granted before the transfer, given that there is a written and, without any financial benefit, agreement between the persons wishing to have a child and the surrogate mother and in case that the latter is married of her spouse, as well. The court authorization is issued after an application of the woman who wants to have a child, provided that evidence is adduced not only in regard to the fact that she is medically unable to carry the pregnancy to term but also to the fact that the surrogate mother is in good health and is able to conceive” (Article 1458 Greek Civil Code).

The Law 3305/2005 (“Enforcement of Medically Assisted Reproduction”) has come to regiment in more detail the assisted reproduction and surrogacy in Greece.  The crucial provisions, as stipulated under art. 13 regarding “Surrogate Motherhood”, have as following:

1. Surrogate motherhood is permitted only under the conditions of the art. 1458 of Greek Civil Code and art. 8 of Law 3089/2002.

  1. The woman who is going to carry the child should be medically examined, according to art. 4, (She should be medically examined for HIV-1 and HIV-2 (Human Immunodeficiency Virus), Hepatitis B and C and Syphilis. In case the surrogate or the commissioning parents are HIV-positive the surrogacy will be permitted only after a special authorization by the National Independent Authority for Medically Assisted Reproduction) and should incur a thorough psychological evaluation.
  2. Art. 4 §§2 and 3 are applied for the examination of the health of prospective parents.
  3. 4. The agreement for the surrogacy should be made without financial compensation. The following are not considered as financial compensation:
  4. The payment for any expenses necessary for the artificial insemination procedure, the pregnancy, the delivery and the childbed.
  5. The restitution for any damages incurred and lost wages by the surrogate because she left her work or she took an unpaid leave of absence during the periods (and because) of insemination, pregnancy, delivery and childbed”.

What it is noteworthy is that the new law proscribes also in art. 26 § 8 the criminal sanctions for those who fail to meet or comply with the above mentioned provisions:

Whoever participates in a surrogacy procedure where the requirements of art. 1458 of Greek Civil Law, art. 8 of Law 3089/2002 and art. 13 of this law, are not met, is liable to imprisonment for a term at least of two (2) years and a fine of at least €1.500. The same sanction applies to:

– whoever publicly, with the circulation of documents, images or representations, introduces, draws attention to or advertise (even covertly), the procuration of a child through a surrogate mother

– or he/she provides professional services as a middleman for any kind of financial consideration

– or he/she offers, in the same way, his/her services or the services of another for the attainment of this goal”.

According to these two Laws and other related minor regulations, surrogacy is only permitted after a judicial decision issued by the district court where the commissioning parents or the surrogate mother reside. The commissioning mother should apply to the court and the insemination procedure can only take place after the publication of the judicial decision.

The court will issue the authorization to surrogacy under the following conditions:

(a) The commissioning mother should prove that she is unable to carry the child to term.

(b) The commissioning mother should not exceed the age of fifty (50).

(c) The surrogate mother should prove to the court that she is medically and mentally fit.

(d) The parties should submit their written agreement to the court.

(e) The agreement could allow for compensation of expenses. The payment for services and any kind of financial benefit is strictly prohibited.

(f) In case that the surrogate mother is married, her husband should also consent in writing by signing the written agreement.

(g) The fertilized ova should not belong to the surrogate mother.

It is noted that the law is not clear as to whether the ova could belong to a third person. Most commentators agree that in this case the three-mother (genetic mother, birth mother, social mother) gestational surrogacy is also permitted.

What it must be highlighted, though, is that with the old regime (pursuant to art. 8 of Law 3089/2002), one of the prerequisites for granting the judicial permission for surrogacy was also the fact that the surrogate mother and the commissioning parents should be Greek citizens or permanent residents.

However, the law has recently changed and the new provisions of L. 4272/2014 foresee now that the surrogacy is allowed to applicants or surrogate mothers who have their permanent or temporary residence in Greece.

With this new law Greece becomes the only EU country with a comprehensive framework to regulate, facilitate and enforce surrogacy, as according to the explanatory statement of the art. 17 of the L. 4272/2014: “The possibility is now extending also to applicants or surrogate mothers who have their permanent residence outside Greece”.