TRIBUNAL CONSTITUCIONAL Portugal

Ruling no. 225/2018

24 of April of 2018

Headnotes

The Constitutional Court examined in its Ruling no. 225/2018 a request for ex post facto 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 32/2006, of 26th July, hereinafter 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.

The Constitutional Court held that a number of norms contained in Law 32/2006 on MAP were unconstitutional: the norms contained in Articles 8 (4), (10) and (11) and, as a consequence, the norms contained in Article 8 (2) and (3), in the part that allows for the celebration of surrogate gestation agreements on an exceptional basis and with prior authorisation; the norm contained in Article 8 (8) in conjunction with Article 14 (5), in the part where it does not allow for the revoking of the consent of the surrogate mother until the child has been delivered to the beneficiaries; of Article 8 (1) in the part that imposes an obligation of absolute confidentiality in respect of persons born as a result of medically assisted procreation by means of donation of gametes or embryos, including in situations of surrogate gestation, on the recourse to surrogate gestation or surrogate gestation procedures and on the identity of the participants in such procedures as donors or as a surrogate mother, and of Article 15 (4).

The Constitutional Court found no unconstitutionality in the norms of the remaining Articles of Law 32/2006 on MAP mentioned in the request;

In its Ruling, the Constitutional Court has also determined that the effects of the declaration of unconstitutionality would not apply to the surrogate gestation agreements authorised by the National Council for Medically Assisted Procreation (NCMAP) in execution of which the medically assisted procreation procedures referred to in Article 14 (4) of Law 32/2006, of July 26 had already been initiated.

Summary

The analysis of the Law on Medically Assisted Procreation undertaken by the Constitutional Court essentially focused on three questions: (i) the admissibility of the right to start a family with recourse to surrogate gestation in the cases where the project of becoming a parent could not otherwise be put into practise on account of clinical grounds that were impeditive of pregnancy; (ii) the right of those born as a result of medically assisted procreation making recourse to the donation of gametes or embryos to know the identity of the donor(s) and, in the case of persons born through recourse to surrogate gestation, to know the identity of the surrogate mother; (iii) the waiver of the ex-officio investigation of paternity in respect of a child born to a woman who has engaged in MAP individually in order to get pregnant , ie outside the context of a marriage or of a non marital partnership.

With regard to the first topic, the admissibility of surrogate gestation, the Court considered that the fact that the Portuguese legislator had envisaged it as an exceptional method of procreation, subjet to the autonomous consent of the interested parties and decided upon by means of an altruistic agreement, subject to the prior authorisation of an administrative authority, did not, per se , violate the dignity of the pregnant woman, of the child born as a result of this method or the obligations of the State towards the protection of children. Notwithstanding, pronouncing itself on specific aspects of the MAP legal framework, the Court found that certain principles and fundamental rights enshrined in the Constitution had been breached, namely:

- That there was an excessive indeterminacy of the law – see Article 8 (4), (10) and (11) – with regard to the limits set for the autonomy of the parties as well as to the restrictions that could be imposed on the behaviour of the surrogate mother in the surrogate gestation agreement. The precise definition of such limits is required in order to validly allow for the definition of the rules of conduct applicable both to the beneficiaries and to the surrogate mother as well as of the standards that are to be used by the NCMAP in the authorisation of the surrogate gestation agreement (breach of the principle of determinability of the law, which is a corollary of the principle of the democratic rule of law - see point (a) of the Ruling, voted unanimously).

- The restriction of the possibility to withdraw the consent given by the surrogate mother from the beginning of the MAP therapeutic procedures (see Article 8 (8) in conjunction with Article 14 (5)) until the delivery of the child to the beneficiaries was in breach of the fundamental right to the development of one’s personality, interpreted in accordance with the principle of the dignity of the human person, and of the right to found a family - see points (b) and (c) of the Ruling, adopted by a majority vote). Indeed, this restriction prevented the full exercise of the fundamental right to the development of the surrogate mother’s personality which in turn conferred constitutional legitimacy to the interventions performed within the framework of the surrogate gestation.

- The legal uncertainty as to the civil status of persons as a result of a surrogate gestation agreement being declared null and void (see Article 8 (12)), due to the fact that the legal regime does not allow for a consolidation of legal positions in this case - as parents, as son or as daughter – nor differentiates according to the time or seriousness of the grounds invoked in order for the agreement to be declared invalid (violation of the right to personal identity and of the principle of legal certainty arising from the principle of democratic rule of law - see point (d) of the Ruling, voted unanimously).

With regard to the second topic, the rule of donor anonymity (as well as that of the surrogate mother), the Court recognised that the dignity of the human person had not been breached. Nevertherless, and also considering the growing importance attributed to the right to know one’s origins, in contrast with the position it had defended in Ruling No. 101/2009, the Court considered that the legislator’s option for the rule of the anonymity of the donors in the case of heterologous procreation, as well as that of the surrogate mother, enshrined in Article 15 (1) and (4) of the MAP Law, although not absolute, imposed an unnecessary limitation on the fundamental rights to personal identity and to the development of the personality of persons born as a result of MAP techniques using donated gametes or embryos, namely in cases of surrogate gestation.

With regard to the fourth topic, the waiver of the ex-officio investigation of paternity, the Court held that, in the specific circumstances where it was envisaged, such investigation would be pointless since the donor could not legally become the father of the born child even in the case where his identity was known. The constitutional standards invoked - principle of the dignity of the human person, principle of equality and right to personal identity - were therefore not breached.

Finally, and considering that the elimination of the norms deemed unconstitutional with a general binding force would imply that all surrogate gestation agreements that had already been authorised by the NCMAP would have to be subsequently overruled - with negative legal consequences to the legitimacy of the therapeutic procedures of the MAP (including the collection of gametes and the breeding of embryos) and to the establishment of the filiation of children born as a result of these treatments - , the Court unanimously decided on grounds of legal certainty and in compliance with the State's obligation to protect children, to limit the effects of its decision in order to safeguard the situations where the therapeutic processes of MAP referred to in Article 14 (1) of the MAP Law had already begun, in execution of surrogate gestation agreements authorised by the NCMAP (see point g) of the Ruling). In these situations, the aforementioned declarations of unconstitutionality will have no effect, with the exception of the one mentioned in Article 8 (12).

Cross-references:

Ruling 101/2009, 3/3/2009, Official Gazette, Series II, nr. 64, 1-04-2009, p. 12452