Surrogacy

18 Feb Surrogacy

From the combination of Articles 2 para. 1 clause β’, 3 nos. 8 and 9, 4, 13 of Law 3305/2005, in conjunction with the provisions of Articles 3 and 7 of Law 4958/2022 and Articles 1455 – 1460, 1464 of the Civil Code and 799 of the Code of Civil Procedure, it follows that surrogacy, i.e., the transfer of fertilized ova to another woman’s body and gestation by her, is permitted with judicial permission after an application by the woman who desires the child. The court, ruling under the procedure of voluntary jurisdiction, grants permission only if the conditions of Article 1458 of the Civil Code are met, specifically, if the woman seeking permission is medically unable to gestate, the woman offering to gestate is medically suitable for gestation given her health status, there is a written and non-compensatory agreement between the parties, and the fertilized ova do not belong to the gestational carrier. The permission must exist prior to the transfer of the fertilized ova, and from the issuance of the final decision granting it, a presumption is created that the mother of the child is the woman who requested and received the judicial permission. This presumption applies even if the judicial permission was granted despite the absence of the statutory conditions; however, the lack of these conditions can lead to a challenge of the decision, through legal remedies, and only if the decision granting the permission becomes irrevocable, the error is covered, and the presumption applies (Efi Kounougeri-Manoledaki, Family Law II, p. 55; Th. Papachristou, Handbook of Family Law, p. 252; related D. Papadopoulou-Klamari, Kinship, p. 213). The issue, namely, of the consequences of violating the conditions of Article 1458 of the Civil Code is linked to the provision of Article 1464 of the Civil Code, which regulates the establishment of kinship and explicitly states that kinship with the woman who desires the child is established only if the conditions of Article 1458 are met, while if the latter does not occur, the rule remains in effect that the mother is the gestational carrier who gives birth. According to Article 799 para. 1 of the Code of Civil Procedure, the jurisdiction to grant permission for a child’s gestation by another woman is established with the Multi-Member Court of First Instance, in the district of which the applicant or the woman who will gestate the child has her usual residence.

Karpouzis – Lianou & Associates Law Firm