Decreto Regulamentar n.º 6/2017

Publicação: Diário da República n.º 146/2017, Série I de 2017-07-31
  • Emissor:Saúde
  • Tipo de Diploma:Decreto Regulamentar
  • Número:6/2017
  • Páginas:4366 - 4368
  • ELI:https://data.dre.pt/eli/decregul/6/2017/07/31/p/dre/pt/html
Versão pdf: Descarregar

Summary in plain english (Without legal value)

What is it?

This regulatory decree defines rules for gestational surrogacy contracts.

In gestational surrogacy, a woman receives and carries in her womb a baby that is not hers. These are called "surrogate mothers".

A genetic mother is a woman whose egg was fertilized to give birth to the baby and a surrogate is a woman who gestates that baby.

What will change?

A template for a gestational surrogacy contract will be created

The National Council of Medically Assisted Procreation (CNPMA) will approve a template for the gestational surrogacy contract.

The template wil be available on the CNPMA website.

This contract must define several rules, including:

  • the surrogate’s obligation to comply with the advice given by the doctor monitoring the pregnancy and to carry out the necessary examinations and procedures to ensure the normal development and well-being of the child
  • the surrogate’s right to participate in the choice of the doctor who will monitor the pregnancy, the type of delivery and the place where the birth will take place
  • the surrogate’s right to receive psychological counselling before and after childbirth
  • the rights and duties of the surrogate, such as the possibility of refusing to take tests like amniocentesis, or the possibility of traveling on certain means of transport or outside the country during the final three months of pregnancy
  • ensuring that complete and adequate information on the treatments to be performed and the risks they may pose to health is provided
  • providing information to the parents and surrogate on the effects of the surrogate’s lifestyle on the development of the child
  • the rules to follow if there is any health issue with the child or the surrogate during pregnancy
  • the rules to follow in case of miscarriage
  • how the people involved in the contract can withdraw from it after failing a certain number of attempts at pregnancy
  • the circumstances under which the people involved may terminate the contract and what the consequences will be
  • that the parents make no payment (in cash or assets) or coerce the surrogate, besides the payment of expenses related to the medical monitoring of the pregnancy
  • the health insurance or other subsystems associated with the contract
  • how to resolve any potential disputes that may arise over the interpretation or performance of the contract.

This contract should serve as a basis for gestational surrogacy contracts, but the people involved may add clauses.

The CNPMA is responsible for verifying that the contracts comply with the rules defined in this decree-law.

A gestational surrogacy contract will require an authorization

Before making a gestational surrogacy contract, you must ask for an authorization from the CNPMA.

The authorization application must be submitted through a form available online at CNPMA’s website. With this form, you must submit:

  • the parents' and surrogate's identifications
  • the acceptance of the conditions of the standard gestational surrogacy contract, signed by the parents and the surrogate
  • medical documents from the medically assisted procreation centre where the treatment will be carried out to prove that:
    • the genetic mother does not have a uterus, has an injury or disease in the uterus that definitively prevents pregnancy or is in another clinical situation that justifies the gestational surrogacy
    • the surrogate is not a donor of any oocyte (cell that generates the ovum) for that pregnancy

  • a statement from a psychiatrist or psychologist supporting the gestational surrogacy contract
  • a statement from the director of a medically assisted procreation centre agreeing that the treatments will be carried out at those facilities.

The CNPMA will decide whether to accept or reject the authorization request within 60 days from the date of submission. If the authorization is granted, the Order of Physicians (Ordem dos Médicos) is asked to give an opinion on the case. Only then will the CNPMA decide whether the contract can be signed.

The Order of Physicians may decide not to issue an opinion. The CNPMA must present a decision within 60 days from delivery of the Order's opinion or of the expiry of the deadline set for such delivery. But it is not obliged to decide according to the opinion expressed by the Order.

The genetic mother's connection with the child during pregnancy will be protected

The connection between the genetic mother and the child must be ensured for the duration of the contract.

The relationship of the surrogate with the newborn child must be kept to a minimum in order to to minimize psychological and emotional risks, unless she is a close relative.

Psychological counselling for the surrogate must be guaranteed

In order to prevent possible physical and psychological complications for the surrogate, the contract must guarantee psychological counselling before and after delivery.

Equal treatment in access to medically assisted procreation

Access to medically assisted procreation techniques for gestational surrogacy within the National Health Service follows the same criteria that applies to other beneficiaries of medically assisted procreation. The waiting periods must be the same.

Rules will be defined to ensure the protection of parenthood

The surrogate’s delivery is considered to be the parents’ delivery and entitles them to apply for parental leave.

The surrogate is entitled to medical leave with the same characteristics as the terminated pregnancy leave.

Both parents and surrogate are entitled to sick leave and time off in accordance with the laws for the protection of parenthood.

What are its benefits?

This decree-law is intended to:

  • create conditions so that, in reality, it is possible to resort to gestational surrogacy as provided by law
  • ensure that gestational surrogacy contracts:
    • guarantee the protection of the child’s interests above all others'
    • take into account the interests of the surrogate
    • favour the genetic mother's connection with the child throughout the pregnancy.

When does it come into effect?

This decree-law comes into effect the day after being published.

This text is intended to present the content of the legal act in accessible, plain and understandable language for citizens. The summary of the legal act in plain language has no legal value and does not replace the consultation of the legal act in the Diário da República.