13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes, mother is the woman who gave birth to the child
b. oocyte donor No
c. sperm donor Yes, but if the mother is married, her husband will be considered the father by pater-est. A sperm donor (and intended father) may be able to recognize the paternity instead of the husband.
d. intended mother No
e. intended father No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)?
Not directly. See also answer to question number five.
If the intended father is also the genetic father (e.g. sperm donor), he will be recognized as legal father of the child unless the surrogate mother is married and there has not been a paternity case, where the husband of the surrogate mother declares that he is not the father of the child.
A spouse or cohabiting partner may apply for a stepchild adoption. However according to Danish regulation, the spouse or partner must have been living with the child for 2½ years before a stepchild adoption may be granted and an adoption decree shall not be issued if any of the parties required to consent to the adoption are to give or receive any kind whatsoever of payments or consideration, including compensation for loss of earnings.
If the intended father is not recognized as a legal father the only option to become legal parent of the child is an adoption, which must be in accordance with the 1993-Hague Convention on Intercountry Adoption, and therefore is difficult.
15. Is the existence of a genetic link required for establishing paternity/maternity? No.
In Denmark maternity is established by mater est, which means that the woman who gives birth to the child is the legal mother.
Paternity can be established in three different ways:
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor Yes and no
d. intended mother No
e. intended father Yes and no. If the intended father is also the genetic father, it is possible to recognize the paternity (cf. answer to question 13).
17. Are foreign birth certificates in surrogacy cases registered in your country No. According to Article 30 of the Children Act, a woman bearing a child who is the result of medically assisted procreation shall be considered the mother of the child (mater est). In Denmark a foreign birth certificate that indicates another person than the birth mother, as parent of the child will not be recognized. If the birth certificate also mentions a father, that paternity will be recognized if the man is also the genetic father of the child.
1. Is surrogacy regulated by a specific law in your country? No. The Health (Assisted Human Reproduction) Bill 2022 (the AHR Bill) was introduced to, and passed Second Stage in, the Dáil (lower House of the Irish Parliament) in March 2022. The focus of this Bill is on the regulation, for the first time in this country, of a wide range of assisted human reproduction (AHR) practices undertaken within the jurisdiction. The Bill as initiated provided for domestic altruistic surrogacy but did not contain provisions to regulate surrogacy arrangements undertaken in other jurisdictions. In March 2024 the Bill passed Committee Stage (Third Stage) in the Dáil. The AHR Bill, as amended at Committee Stage, includes new provisions in respect of the regulation of international surrogacy agreements and the recognition of certain past surrogacy arrangements.
2. Is surrogacy regulated in another way? (please specify) No, but in February 2012, the Department of Justice and Equality issued a guidance document to parents seeking travel documents for children born outside the State as a result of surrogacy arrangements entitled: Citizenship, Parentage, Guardianship and Travel Document Issues in Relation to Children Born as a Result of Surrogacy Arrangements Entered Into Outside the State. A pre-condition of granting emergency travel documents is that the genetic father (intending father) makes an application for a declaration of parentage and guardianship for the child within 10 working days of the arrival of the child into the State.
3. Has surrogacy been the subject of jurisprudence/court cases in your country?
MR and Anor – v- An tArd Chlaraitheoir & Ors [2014]
This case concerned an arrangement whereby a woman agreed to act as a surrogate for her sister and brother-in-law (the commissioning couple). The commissioning couple provided the genetic material (egg and sperm), which ultimately resulted in the birth of twins. The commissioning couple sought to have the birth register altered so that the commissioning couple were both registered as the legal parents. The Registrar refused to do so, on the principle that under Irish law the woman who has given birth to a child is always regarded as the legal mother. That refusal was challenged in the High Court.
In his judgment of 5th March 2013, Judge Abbott found in favour of the commissioning couple. He held that the genetic mother, and not the birth mother, was the mother, and that the person with the genetic/blood link was entitled to be registered as the parent on the birth certificate.
In February 2014, the State appealed Judge Abbott’s decision on the grounds that: it could create uncertainty regarding the parentage and parental rights of children born as a result of egg donation; demean the role of birth mother; lead to an opinion that commercial surrogacy is not unlawful; and result in the Registrar requiring genetic proof of maternity for every birth.
In November 2014 the Supreme Court overturned the High Court decision on the basis that the case had raised important, complex and social issues which are best addressed by the Oireachtas rather than the judiciary.
High Court Ruling:
Supreme Court Ruling: http://www.courts.ie/Judgments.nsf/0/E238E39A6E756AB480257D890054DCB6
4. Is there a legal definition of the term “surrogacy”? (please specify) No.
A legal definition of the term in the AHR Bill, as initiated, is as follows:
“‘surrogacy’ means an agreement, between a woman and the intending parents (or, in the case of a single intending parent, that intending parent) under which the woman agrees to attempt to become pregnant, by the use of an egg other than her own, and, if successful, to transfer the parentage of any child born as a result of the pregnancy to the intending parents (or, in the case of a single intending parent, that intending parent)”.
However, this definition is subject to amendment and may not be the version in the finalised AHR legislation by the time it has passed through all stages in both Houses of the Oireachtas and has been enacted.
18. Is there:
a. any public discussion about the topic There is an important public debate on this topic, with a public opinion predominantly opposed to surrogacy
b. planning of new regulation at national level The bill approved by the Chamber of Deputies and forwarded to the Senate (No. 824), which incorporates proposals presented in the previous legislature (Nos. 2599 and 306, Chamber of Deputies), extends the application of Italian criminal law to the crime of surrogacy committed by Italian citizens abroad.
19. Please specify any additional relevant aspects which were not mentioned.
Italy brought the Paradiso and Campanelli v. Italy case in front of the ECHR (judgment on 27 January 2015). A case of a child born in Russia following a surrogacy arrangement entered into by a couple who had no biological relationship with the child, contrary to allegations made by the applicants. The Italian State declared the child legally available for adoption and placed him under guardianship. The European Court of Human Rights condemned Italy. However, the Italian government appealed this decision and requested that the case be referred to the Grand Chamber of the ECHR. Grand Chamber hearing with the Italian government was held on 9 December 2015. With the judgment on 24 January 2017, the ECHR established: “ The Court accepts that the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them in the present case. It follows that there has been no violation of Article 8 of the Convention”. The ECHR recognized that the measures in question were deemed proportionate to the protection of the overriding interest of the child and essential to avoid recognizing as legitimate a situation created in violation of rules important to the national system.
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive:
Health insurance only refunds medical expenses if the person undergoing the treatment has a medical need. The surrogacy mother does not have such a need, thus there will be no refund of medical expenses out of the insurance. The authority advising the minister on health insurance issues is now looking into this with regard to situation where the intended parents do have a medical indication for the surrogacy treatment.
Since surrogacy is unregulated in The Netherlands, there are no rules for compensations for the surrogate mother by the intended parents. In the bill that is in parliament at the moment, there are limitations to what payment will be is allowed. Although it is not yet clear how exactly, it is clear that any (appearance of) the buying of children should be avoided.
a. refund of medical expenses No
b. refund of other expenses
c. compensation for loss of income
d. other compensation including non-pecuniary
e. remuneration or comparable advantage
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law? If they violate article 151b and/or c of the penal code, which prohibits (commercial) mediation with the intend of surrogacy and making public the desire to be a surrogate mother or seeking one. The gamete donor is not included in the prohibition. In the bill that has been sent to Parliament is proposed to decriminalize making public the desire to be a surrogate mother or seeking one.
a. surrogate mother Yes
b. intended parent(s) Yes
c. gamete donor Yes
d. facilitator Yes
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate No
b. remuneration of the gamete donor No
c. advertising for surrogacy services No
d. remuneration of facilitators No
e. any other unlawful practices (please specify) No
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
13. Who is recognised as the legal parent(s) of a child born following surrogacy? The surrogate mother is always the legal mother of the child (mater semper certa est). When the surrogate mother is married, her husband will be the legal father of the child. When the surrogate mother is not married, the intended father can claim legal parenthood by acknowledging the child. The only way currently for intended parents to gain full legal parenthood (and for the surrogate mother to end her parenthood) is through adoption (or recognition of the foreign birth certificate or foreign court decision). This would change with the new legislation in preparation; which would allow legal parenthood by the intended parents from the moment of birth of the child.
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father Yes/No
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? Yes, adoption proceedings. See also the previous answers.
15. Is the existence of a genetic link required for establishing paternity/maternity? No
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father Yes/No
17. Are foreign birth certificates in surrogacy cases registered in your country. This depends on what information is on the birth certificate. In general, Dutch law requires the mother who gives birth to be on the birth certificate. (but see earlier answer with reference to jurisprudence deviating from this starting point) As a result, a foreign birth certificate on which the intended parents are listed as the legal parents without mentioning the birth/surrogate mother is not recognized in practice because of a violation of Dutch public policy (ordre public). If this is the case, the birth data can be determined in the Netherlands and included in a (new) birth certificate.
1. Is surrogacy regulated by a specific law in your country? No specific law, but specific provisions in more general laws
Article 12 (general prohibitions and penalties), section 6 of Law n°40/2004 on assisted reproduction techniques bans surrogacy (“Whoever, in any form, produces, arranges or advertises the sale of gametes or embryos or surrogate motherhood is punished with imprisonment from three months to two years and a fine ranging from 600,000 to one million euros”).
Pursuant to the Italian Constitution, the combined provisions of Articles 2, 30 and 31 preclude its legitimacy, thereby stating the irreplaceability of both personal and economic duties related to parental responsibility incumbent upon genetic parents, alongside the child’s right to be raised by the latter and to be entitled to a substitute family only when the parents’ incapacity is objectively certified.
In addition, Article 5 of the Italian Civil Code prohibits any actions on one’s own body when causing a permanent damage to physical integrity or when violating Law, public order or decency.
2. Is surrogacy regulated in another way? (please specify) No
3. Has surrogacy been the subject of jurisprudence/court cases in your country? Yes, judgments by Italy’s Supreme Court (n. 24001/2014) and the Constitutional Court (n.162/2014) confirmed the prohibition of Law no.40/2004. Particularly, in judgment n° 162/2004, the Court ruled that “the technique under examination must be strictly restricted to the donation of gametes and kept separate from other different methods, such as “surrogate pregnancies”, which are expressly prohibited under Article 12(6) of Law no. 40 of 2004, the prohibition of which has not been challenged and is not affected in any way and at any point by this ruling, and will hence continue to be valid and effective”.
4. Is there a legal definition of the term “surrogacy”? (please specify) No
11. If surrogacy is forbidden, is the conduct of the following persons criminalised by the law?
a. surrogate mother Yes
b. intended parent(s) Yes
c. gamete donor The sale of gamete is banned, not the donation
d. facilitator Yes
12. Subject to the applicable law, are you aware of the following unlawful practices in your country?
a. remuneration of the surrogate
b. remuneration of the gamete donor
c. advertising for surrogacy services Yes
d. remuneration of facilitators
e. any other unlawful practices (please specify)
1. Is surrogacy regulated by a specific law in your country? No specific law, but specific provisions in more general laws
2. Is surrogacy regulated in another way? (please specify) No
3. Has surrogacy been the subject of jurisprudence/court cases in your country? No
4. Is there a legal definition of the term “surrogacy”? (please specify) No
5. Is surrogacy prohibited in your country? All forms of surrogacy have been prohibited in Türkiye.
a. any form of surrogacy Yes
b. only specific forms of surrogacy (e.g. commercial) (please specify) No
9. Is it lawful to advertise surrogacy services? No
10. Is it lawful to remunerate a facilitator/surrogacy agency No
8. Can the surrogate also be the oocyte donor? No
18. Is there:
a. any public discussion about the topic Yes/No
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned.
Surrogacy in the sense of surrogate mothership in the context of medically assisted procreation is not allowed in Türkiye. Medically assisted procreation is limited to artificial insemination such as IVF techniques and the like, and these are practiced in cases of infertility at certified medical centres permitted / authorised and monitored by the State in line with the concerned Regulation.
In Türkiye the main legal document dealing with the assisted procreation is the Regulation on the application of Assisted Reproduction and the health institutions that practice this (Uremeye Yardimci Tedavi Uygulamalari ve Uremeye Yardimci Tedavi Merkezleri Hakkinda Yonetmelik) (The Regulation).
The Regulation ordains the application of the medical techniques of assisted reproduction and embryo transfer in line with the modern medical technologies and sciences. It also regulates specifications of the practice, duties and responsibilities, physical conditions, terms of certification of the concerned health institutions (whether in the State or at private sector), requirements of the personnel who work there, and the like.
Article 1 states that assisted reproduction and embryo transfer can be applied only to married couples who are not able to procreate in natural way.
Article 4/f states that only expectant mother’s ovum and her husband’s sperm can be fertilized by diverse medical methods and transferred and placed into mother-to-be’s womb through proper medical techniques.
It is added to the Regulation that only married but infertile couples can benefit from assisted procreation services using only their own fertilized oocytes, sperms and zygotes. Couples are also liable to document their infertility meaning that they are unable to reproduce in natural way.
Upon an amendment on 8.7.2005, Article 17 prohibits the use of ova, sperms and embryos harvested from married couples onto other persons or candidates of parents. This Article, prohibits also, the use of ova, sperms and embryos harvested from other persons or candidates for the applicant parents. This Article bans the commercialization of human reproduction cells, as well.
In conclusion, as understood from the Regulation, married couples are strictly forbidden to accept (egg and/or sperm) donation from other persons or to donate their own embryos to other persons, or transfer them to surrogate mother(s). Surrogacy is evaluated as against individual rights and freedoms, common morality and common law (1)
The underlying reasoning of this argumentation lies in the idea of parenthood and familial link stated in the Turkish Civil Code (2). However, the relevant parts of the Civil Code dealing with parenthood or familial link do not ordain assisted procreation and embryo transfer, neither their relevant outcomes are presumed. The Turkish Civil Code (2001) acknowledges the Roman Law principle “Mater semper carta es’’, which has the power of praesumptio iuris et de iure, meaning that no counter-evidence can be made against this principle (literally: Presumed there is no counter evidence and by the law). Its meaning is that the mother of the child is always known. Article 282/1 states that the familial parental link between the mother and the child is set by birth that means legal mother is biological mother. The underlying reason of this is the presumption that there is a biological bond (umbilical cord unifying them) between the bearing and delivering mother with the child who is born (3).
Nevertheless, there seems to be some shortages to be amended to cover the needs of persons regarding emerging new medical technologies and genetics.
Sources
(1) The Regulation http://www.mevzuat.gov.tr/Metin.Aspx?MevzuatKod=7.5.20085&MevzuatIliski=0&sourceXmlSearch=%C3%BCreme (Accessed on 29.08.2016)
(2) The Turkish Civil Code (recently amended in 2013): http://www.mevzuat.gov.tr/MevzuatMetin/1.5.4721-20130711.pdf (Accessed on 29.08.2016)
(3) Sukran Sipka, “Tasiyici annelik ve getirdigi hukuki sorunlar” (Surrogate mor-therhood and the problems brought along with), Cumhuriyet Dergi, 25 February 2007http://www.turkhukuksitesi.com/makale_537.htm (Accessed on 29.08.2016)
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Surrogacy has not been regulated by law in Türkiye, in other words, there is no law or regulation on surrogacy and surrogate motherhood in the sense of assisted reproduction. But the conditions of having a child through assisted procreation have been ordained by law and the allied Regulation mentioned above which do not include surrogacy nor surrogate motherhood.
In Türkiye, embryo is created for procreation, meaning that, it is produced in vitro for fertilization of the married couples who cannot have child in natural way. This procedure has been legalized and it can be done only by the ova and sperms (oocytes and zygots, gametes) of the married couples themselves; they cannot be taken from third parties.
Additionally, embryo is not created by research purposes. The surplus embryos created during the process of assisted reproduction are not allowed to be used for research purposes. The legal regulations concerning stem cell and regenerative medicine are at a preliminary stage and this area needs to be improved and enhanced.
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) No
b. other criteria (please specify) -
5. Is surrogacy prohibited in your country?
a. any form of surrogacy Yes
b. only specific forms of surrogacy (e.g. commercial) (please specify) -
7. If surrogacy is allowed, is it lawful for the surrogate mother to receive: Yes, only on the basis of an agreement between both sides of surrogacy process in each case.
a. refund of medical expenses Yes
b. refund of other expenses Yes
c. compensation for loss of income Yes
d. other compensation including non-pecuniary Yes
e. remuneration or comparable advantage Yes
6. Is access to surrogacy subject to specific criteria?
a. medical criteria (e.g. infertility of the intended parent(s)) No
b. other criteria (please specify) No
18. Is there:
a. any public discussion about the topic No
b. planning of new regulation at national level No
19. Please specify any additional relevant aspects which were not mentioned.
18. Is there:
a. any public discussion about the topic Yes. There is currently no political debate at federal level.
b. planning of new regulation at national level No
The two parliamentary items (postulate) have been settled.
19. Please specify any additional relevant aspects which were not mentioned.