The institution of surrogacy serves the woman’s need to have a child, when she is unable to carry it for medical reasons, but also to avoid the transmission of a serious disease to the child (Article 1455 of the Greek Civil Code). Nowadays, there are many couples who resort to the solution offered by surrogacy. In this article we will try to clarify in an understandable way the legal framework that governs the process of having a child with a surrogate mother in Greece.
The right to reproduction is constitutionally guaranteed, being a more specific expression of the right to the free development of the personality (Article 5 par. 1 of the Hellenic Constitution) and is legislatively framed by the provisions of Laws 3089/2002 and 3305/2005, as amended by Law 4272/2014 and the decision numbered 1704/2022 (Government Gazette 5524/B/26-10-2022) of the Supervisory Board of the Greek National Authority for Medically Assisted Reproduction.
Surrogacy is called the method of medically assisted reproduction, according to which a woman becomes pregnant and gives birth (carrying or gestating), after in vitro fertilization and the transfer of fertilized foreign eggs to her, on behalf of another woman, who wishes to have a child, but is unable to conceive for medical reasons. The eggs can be either of the mother herself or provided by a third woman. It is noted that in Greek Law it is not allowed for the eggs to be from the surrogate mother herself. The transfer of foreign fertilized eggs to the body of the surrogate mother is permitted only upon judicial permission, which is granted before their transfer and after checking certain conditions, which are set in articles 1458 of the Greek Civil Code and 8 of Law 3089/2002 (article 13 Law 3305/2005).
In particular, the following conditions must be met:
– Medical incapacity of the applicant mother in terms of pregnancy (article 1458 section 2 of the Civil Code). It is noted that the applicant must not have exceeded the age of natural reproductive capacity, which is defined in principle at her fiftieth (50th) year of age.
– And the woman who undertakes to become pregnant must be, in view of her state of health, suitable for pregnancy and at the age of over twenty-five (25) and up to fifty-four (54) years old. For women between the ages of 50 years and one day up to 54 years old, a relevant license from the National Authority for Medically Assisted Reproduction is exceptionally required.
– To carry out medical tests for human immunodeficiency viruses (HIV, HIV2), hepatitis B and C and syphilis (RPR) both for the woman who is about to become pregnant and for those who wish to have a child, while the woman who will become pregnant is further subjected to a thorough psychological evaluation (Art. 13 par. 2 and 3 n. 3305/2002). The woman who undertakes to conceive must not suffer from any mental or neurological disease.
– The fertilized eggs that are implanted in the uterus of the pregnant woman must not belong to her (article 1458 of the Greek Civil Code).
– It is necessary to conclude a written agreement, which is presented to the court, for the pregnancy between the persons seeking to have a child (married couple or couple living in a free union, single woman), the woman who will become pregnant, and her husband if she is married.
– The surrogate mother should not have undergone more than two caesarean sections. At the same time, there is no temporal or quantitative limitation as to the number of embryo transfers to which the prospective pregnant woman is to undergo with the same or a different court decision.
– For the implementation of articles 1458 and 1464 of the Greek Civil Code, either the applicant or the one who will carry the child must have her residence or temporary residence in Greece (article 8 of Law 3089/2002, as replaced by the article 17 Law 4272/2014). For the proof of the residence provided for by Article 8 of Law 3089/2002, i.e. the center of life relationships, or the temporary residence of the applicant or the woman who will carry the child, this should be done by any suitable means of proof, even with responsible declaration of the interested party. It is therefore concluded that the permanent residence of the applicant and the expectant mother in Greece is no longer necessary (PPrIlias 15/2022).
A woman who is unable to conceive is the one who is exclusively authorized to file an application, before the Multi-Member Court of First Instance of the district in which either the applicant herself or the pregnant woman have their residence or habitual residence.
If the relevant judicial permission is granted, it is presumed that the mother is the one to whom the relevant judicial permission has been granted. As described above, the relevant permission must be given before pregnancy from the competent court.
For each positive damage of the surrogate mother, compensation is paid for abstinence from her work, necessary to achieve the pregnancy, gestation and delivery. In relation to the compensation for absence from work, the following apply: If the pregnant woman works in a dependent employment relationship, compensation is due only if during the aforementioned absence from work she did not receive, for any reason, her salary or wages. The amount of the compensation results from a responsible declaration of the surrogate mother, in which the time of absence from work and the loss of income are determined. If the pregnant woman is unemployed, the amount of the compensation covers the remuneration that, based on her professional training, she would receive if she were working. In any case, the compensation cannot exceed the amount of 10,000 euros. The compensation is due only if the judicial permission required by law has been granted (art. 2 par. 2 of Decision no. 1704/2022 2022 of the Supervisory Board of the National Authority IYA, Official Gazette 5524/B/26- 10-2022).
Regarding compensation due to physical strain, a woman who becomes pregnant on behalf of another is entitled to compensation of 10,000 euros for a singleton pregnancy and 15,000 euros for a multiple pregnancy. The compensation is due only if the judicial permission required by law has been granted (art. 2 par. 3 of Decision no. 1704/2022 2022 of the Supervisory Board of the National Authority IYA, Official Gazette 5524/B/26- 10-2022). This provision for compensation for physical strain is a recent innovation of the relevant legislation, as previously it was strictly forbidden to pay any amount beyond compensation for absence from work.
In summary, those interested in resorting to the method of surrogacy should bear in mind that it is necessary to contact a legal advisor specialized in family law issues, who will be able to effectively guide them in meeting all the necessary conditions set by the law on the birth of a child through a surrogate mother.
* Our firm has extensive experience in handling all types of family law cases and, among others, cases related to medically assisted human reproduction. For more information or advice, do not hesitate to contact us at tel. 2313 079293 or by email at email@example.com*
Dafni I. Siopi
Attorney at Law, LLM
52 Tsimiski Str, Thessaloniki
T. +30 2313 079293, +30 6977 568673
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