Violante, Teresa

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Teresa Violante Sa 28 Apr 2018 Sa 28 Apr 2018(Not) Striking Down Surrogate Motherhood in Portugalverfassungsblog.de/not-striking-down-surrogate-motherhood-in-portugal/Last Tuesday, on the eve of celebrating the country’s democratic revolution, thePortuguese Constitutional Court (“PCC”) struck down some provisions of the Law onMedically Assisted Procreation. In a quite long and carefully grounded ruling that includedseveral partially dissenting opinions (summary note available here), drawing extensively oncomparative and international law, the Court declared the unconstitutionality of someprovisions of the regime on surrogacy (“gestation by substitution” is the legal terminology),as well as the prohibition to disclose the identity of gamete donors and gestational(surrogate) mothers.Surrogate motherhood was introduced by Law 25/2016, of 22 August, after having beenexpressly forbidden since 2006. Previously, Law 17/2006, of 20 June, had granted femalecouples, as well as any woman, regardless of her civil status or sexual orientation, accessto assisted reproductive technique (ART) (except surrogacy). This amendment introduced arevolutionary change of paradigm: instead of a subsidiary means to achieve procreation,ART is now available to any woman regardless of infertility causes. Assisted reproductionhas thus evolved from being a subsidiary mechanism to conceive to becoming analternative method of procreation for women (and women only). This paradigmatic shift,however, was not questioned by the petitioners to the case. By stressing the fact that thelegal option to allow the deliberate creation of single-parent families by means of ART hadnot been questioned – despite the constitutional relevance of the paradigm shift – the Courtclearly left open the possibility of a future new challenge to the law.In Decision 225/2018, the PCC ruled on essentially three different questions: (i) surrogacyin cases where medical conditions prevent a viable pregnancy; (ii) the right of the childconceived through gamete or embryo donations to know the identity of the donor(s), as wellas the identity of the gestational mother in case of surrogacy; (iii) the validity of dischargingformal investigations of paternity in case a single mother has resorted to ART to getpregnant. This last challenge was easily rejected by the PCC. Since those persons couldnever be established as parents of the child, a formal inquiry would in any case beirrelevant. The unconstitutionality rulings were delivered on the first two sets of problems:gestation by substitution and the disclosure of identity of donors and surrogate mothers.Surrogacy was introduced as a last-resort option for couples facing serious medicalconditions. It must be governed by an exclusively altruistic and written contractualagreement between the “beneficiaries” (the intending parents) and the gestational mother,previously authorized by the National Council on Medically Assisted Procreation (NCMAP).In any case, the gamete of at least one of the beneficiaries must be used (either the oocyteor the sperm).Regarding surrogacy, the most striking aspect of this decision is not what the PCC ruledunconstitutional but rather what the judges expressly accepted as being constitutionallyvalid. The PCC ruled the admissibility of surrogate motherhood per se, rejecting the claims1/3that it breaches human dignity and the State’s duty to protect the children. In line with thePortuguese Constitution’s openness on matters that link sensitive moral and ethical issues,and the corresponding judicial tradition to defer such matters to the democratic legislature’smargin of appreciation in each historical context, the Court easily accepted surrogacy as avalid political option. Although rejecting a constitutional right to surrogacy, the PCCrecognized that the legal option to legalize this practice is grounded on relevantconstitutional values (such as the protection of individuals with disabilities, the right toconstitute a family, which includes the right to have children, and the right to thedevelopment of personality of the surrogate, whose altruistic motives also enjoyconstitutional protection). The Court assumed that the instrumentalization of the surrogatemother is dully restricted and added that pregnancy is not in any way a kind of incapacitysince the pregnant woman remains essentially as physically and intellectually free asbefore.However, some concrete legal aspects were declared unconstitutional. First, the judgessanctioned the fact that the law did not foresee a right to regret. The surrogate mother couldonly revoke her consent until the beginning of therapeutic procedures. For the Court, this isa disproportional breach of the surrogate’s right to development of personality, inaccordance with the principle of human dignity (Articles 18(2), 26(1) and 1 of theConstitution). This reasoning was based on strong concerns for the need to protect thevulnerability of the gestational mother since her will may change during the long period oftime that elapses between the beginning of the treatments and the birth of the child. Toguarantee that her consent is entirely free, the law must grant the surrogate mother a rightto regret until after the child has been born. In these cases, the decision on the disputeregarding the child must be adopted on a case-by-case analysis, in accordance with thechild’s best interests. Not only the Court detailed the reasons for rejecting the legislation, italso provided careful guidelines that the legislature should follow to render it compatiblewith the Constitution.Second, the Court rejected the framework governing a possible invalidity of the gestationalcontract. The legislature had introduced a nullity regime, without further clarifications onpossible time limits or different causes for breach of contract. This uncertainty carried aserious undefinition regarding the status of the child born out of a possibly invalid contractand was rejected for violating the fundamental duty of the State to protect the children(Article 69(1) of the Constitution).Third, the Court also rejected the framework provided for surrogacy contracts due to itsindeterminacy. The law basically deferred to the will of the parties the power to define thecontractual clauses, which implied a breach of the principle of determinability of the law asa dimension of the rule of law. The effects of the unconstitutionality decisions in surrogacycases were limited in order to protect the cases in which the medical procedures havealready been initiated.Finally, the Court also struck down the legal regime that provided for the anonymity ofgamete donors and of the gestational mother. On the first case, anonymity was set forth asa general rule, subject to possible reversal by the courts. Anonymity of the gestationalmother was, however, enshrined as an absolute rule. The Court considered that in both2/3cases anonymity entails a disproportionate breach of the child’s fundamental rights topersonal identity and free development of personality (Articles 18(2) and 26(1) of theConstitution). The decision on the anonymity of donors took many by surprise since it partlyrepresents a turn in the case law. The Court specifically acknowledged this turn, employinga dynamic interpretation of the right to personal identity based on its increasing prevalenceupon other interests (namely, of the donors in remaining anonymous). The Court stressedthe rights of the child, claiming – again, with a certain degree of detail – the enactment of arule that, in principle, allows access to the identity of donors and surrogates unless strongreasons demand otherwise.This ruling proves the Court’s willingness to uphold strong constitutional values, speciallythe need to protect the more vulnerable parties to a contract of gestation by substitution.Those parties are, without question, surrogate mothers and the children. The decision hasreceived strong criticism not only from advocates of more liberal regimes of ART (leading,for example, to the resignation of the previous president of the NCMAP), but also fromfeminist groups that accuse the Court of adopting a gender-biased perspective againstwomen. These criticisms ignore basically three things: first, that there is a strong judicialempowerment of the condition of pregnant women and of the role of gestational mothers asautonomous and free persons whose constitutional protection must also be enforced.Second, that surrogacy involves the rights of two women – the intending mother and thesurrogate – both in need of protection. There can hardly be any good argument to counterthe fact that it is the surrogate who is placed in a more vulnerable position and, therefore, ingreater need of protection. Third, that ART also affect the rights of the children. To ignorethe children’s rights, namely their right to identity, at the sole cost of the adults’ right toprocreate and to keep the donors or surrogates’ anonymity, is too much to be asked from aConstitutional Court well known for its proactive stance regarding the protection offundamental rights.From a Portuguese constitutional law perspective, however, the most remarkabledistinctiveness of the judgement is perhaps the profound degree to which the Court detailsthe possible legal options to render future amendments constitutionally valid. Whereasthere may not be anything unusual to such practice in other jurisdictions, the absence ofdialogic mechanisms in Portugal, both formal and doctrinal, is well known. The clearmessages sent by the PCC to the legislature show a careful self-repositioning of the Courtin its role as a constitutional interpreter in a democracy, an exciting move that must bewelcomed with enthusiasm.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Violante, Teresa: (Not) Striking Down Surrogate Motherhood inPortugal, VerfBlog, 2018/4/28, https://verfassungsblog.de/not-striking-down-surrogate-motherhood-in-portugal/.3/3

(Not) Striking Down Surrogate Motherhood in Portugal

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(Not) Striking Down Surrogate Motherhood in Portugal

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