Questão de sobrevivência (Portuguese Edition)

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The new law, although very welcome, falls short of these intents and its legal regime still raises several relevant doubts regarding the regulation of surrogacy. Therefore, lawmakers are encouraged to reformulate the existing law to address the many topics omitted in its current version. One of the most widely discussed questions in surrogacy arrangements concerns the possibility of withdrawing from the surrogacy contract, usually known as the 'right to regret' Appleton, In court, the most common form of the right to regret comes from the surrogate, when she wants to be legally designated the child's mother instead of transferring this right to the contracting parents, who want and are entitled to the child under the original agreement.

However, regret can assume very different forms and it can be expressed by any of the parties to the contract the contracting parents or the surrogate. In the case of the surrogate it can consist of a desire to terminate the pregnancy or to keep the child typically after birth , and it can manifest at any moment during the arrangement. Regret may become a huge and complex problem if not properly addressed, first by lawmakers and afterwards by the parties to the contracts.

If some forms of the right to regret are allowed by law, it is imperative to define the way it will operate, namely, when it should be recognised. In these regards the more restrictive point of view suggests a time frame of 48 hours after birth Perdue, ; CNPMA, ; whereas other proposals extend the right to regret by as much as 6 weeks this time frame is the one used in the adoption regime of Portuguese law and it is also the deadline for the surrogate to provide her consent under British law, Section 54 7 of the Human Fertilisation and Embryology Act.

The definition of this time lapse if very sensitive. It cannot be too long, otherwise the surrogate and the child may become more attached to each other. Alternatively, it cannot be too short or the surrogate will not have enough time to properly decide. The possibility that the surrogate could withdraw her initial consent to the arrangement and keep the child to herself has traditionally been one of the biggest obstacles to legally recognising surrogacy.

However, in the early days the surrogate was not only the gestational carrier but also the genetic mother in every case the contracting woman was unable to provide her own genetic material. The coincidence of such status obviously increased the connection between the surrogate and the child, and provided a legal and an ethical, physiological and genetic basis for granting her request to keep it. However, currently surrogacy procedures generally separate the gestational and genetic contributions; in other words, in a case where the contracting woman cannot use her own reproductive gametes, the oocyte is provided by a donor and not by the surrogate.

This new solution reduces the connection physical and therefore also emotional between the surrogate and the child. Although it cannot completely annul the possibility of regret, it certainly makes it less feasible. Further, whenever the fertilised egg belongs to the contracting mother, her genetic contribution provides additional justification for her to claim the child: The right to create a family is an expressly recognised right in almost every European Constitution, although its exact content is not clear, namely it can be discussed if the right to create a family may serve as grounds to a claim based on a surrogacy contract.

However, this study will not analyse this particular question. If the surrogate does not contribute with her own genetic material, and if she has provided her free and informed consent to the arrangement i. She is simply a carrier, and no matter how attached she may become to the child, even believing that the child is hers, the fact is that it is not her child and she is legally committed to relinquish the baby to the contracting parents, who are often the genetic parents as well.

Although the right to regret is usually discussed in terms of the surrogate, contracting parents may also have regrets and wish to terminate the contract. Their regret leads to several different consequences, most of which are also very troubling: Of course, a child cannot be imposed on anyone, not even its genetic parents the same is valid for children resulting from sexual intercourse , so the contracting parents' right to regret cannot be denied as a matter of law. However, the law and the contract can impose severe penalties that far exceed the usual penalties for breach of contract against those who have engaged in such a complex proceeding, and in the end, have changed their minds.

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Where the contracting parents are concerned, Article 14 must be taken into consideration. This is the statute pertaining to consent for the use of ART. This regulation belongs to the text of the original law and has not been modified in any way by its recent amendment.

It should be noted that Portuguese lawmakers have used the expression 'beneficiaries of the techniques' to refer to people using ART, an expression that does not include the surrogate as it is demonstrated by the fact that in some in some other parts of the law both expressions are used in a cumulative way: Accordingly, the quoted terms only refer to the contracting parents' consent. The exact determination of the 'beginning of therapeutic procedures' is crucial because it defines when the contracting parents can revoke the arrangement.

An analysis of informed consent forms provided by the CNPMA although the use of those forms is not mandatory, public hospitals and private clinics have both adopted them leads to the conclusion that in accordance with the CNPMA the moment to revoke consent is at uterine transference. In fact, the forms to be signed by the ones using ART as a reproductive treatment include a clause stating: In any case, the expression does not describe uterine transference, which is a procedure that takes place at a more developed stage.

Therefore, either the law or the quoted clause should be modified, because currently there is a clear contradiction between them. I believe that the informed consent form provides a more reasonable solution: In the case of surrogacy contracts, the crucial moment takes place even earlier, at the signing of the contact, as it would in any other contract. At least, it was not intended to regulate the relationship between the contracting parents and the surrogate, but merely the relationship between the contracting parents themselves there is no special provision to regulate this issue within the framework of surrogacy.

As for relations between the contracting parents and the surrogate, surrogate, the legal regime has been established although in very general terms by contract law, because the law that has ultimately allowed surrogacy has been totally silent on withdrawal. Thus, only contract law is applicable, and if the contracting parents experience regret after signing the contract they can be forced to pay compensation to the surrogate for patrimonial and non-patrimonial damages.

The existing Portuguese law does not foresee any right to regret for the surrogate.

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This last Article shows that the law distinguishes these two types of participants and does not consider the surrogate to be one of the 'beneficiaries of the techniques'. Nonetheless, an embryo transfer cannot take place coercively, just as a pregnancy cannot be imposed on a woman by force; so actually the surrogate can refuse embryo transfer and can also refuse to carry on with the pregnancy. However, that does not mean that this refusal is immune to legal consequences.

Another possible scenario is regret after uterine transference. Certainly, the court cannot force the surrogate to continue with a pregnancy she does not desire; however, we may wonder whether the court will require the surrogate to pay compensation for an unlawful abortion, i. The question is that, in the absence of a provision included in Law n. The concept of 'justifiable breach' of a surrogacy contract requires further clarification from legislators, but it can be reasonably sustained that only the surrogate's medical condition or another special circumstance that prevents her from carrying the child to term should be deemed 'justifiable'.

In any case, the contract must anticipate the possibility of the surrogate's change of mind, and this might avoid the necessity for court intervention to settle the dispute. In particular, the law does not provide any possibility for the parents to decline to receive the child on the grounds that it was born with a severe medical condition transmitted by the surrogate or due to the surrogate's behaviour during pregnancy. Both of these circumstances are only relevant to a compensation request in a civil lawsuit if the remaining legal requisites are fulfilled. Therefore, the only possibility for regretful parents is to give the child up for adoption.

Under such circumstances, the surrogate is not prohibited from adopting the child.


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Actually, adoption is the only option for the surrogate that whishes to keep the child precisely because she is not legally considered the child's mother. The question of the surrogate's regret after delivery was widely discussed during the drafting of the law. The CNPMA proposed that the law should include a provision allowing the surrogate to declare, within 48 hours of delivery, if she wants to be considered the mother.

However, such a proposal was not accepted and it was not included in the final version. Thus, the Portuguese law does not accept, under any circumstances, the regret of the surrogate after delivery, which continues to be one of the biggest targets of criticism by Portuguese scholars regarding the existing regulation Reis, The question and I still do not have a proper answer for it, given that there have not been any court decisions yet is how the absence of a legal right to regret will be understood in real surrogacy cases.

In sum, if the surrogate does not relinquish the child to the contracting parents it is doubtful that any court order could force her to do it. One hypothesis, probably more theoretical than real, is the one in which the surrogate wants the child and the contracting parents do not. At first glance the solution seems simple because there is no actual conflict between the parties; however, the problem is that Law n.

Therefore, it seems that in this hypothetical situation the surrogate would be required to resort to the adoption process to keep the child. Nonetheless, assuming that she is not the child's genetic mother, I see no reason not to issue a court order to deliver the child, and actually the content of Law n. Whether contract law should rule surrogacy contracts in the event of a breach is a matter for discussion. Surrogacy contracts seem to be very distant from the usual affairs regulated by contract law.

Nonetheless, there is no obstacle to the application of contract law, including contractual liability, to surrogacy contracts the same is valid for other contacts also belonging to family law, such as gamete donation , even though provisions should be incorporated to better accommodate the specificities of these contracts. Otherwise these contracts would exist outside of a legal framework.

So, both legal doctrine legal doctrine and court rulings would be required to adapt contract law to some of the special demands of surrogacy contracts. One of the most relevant dimensions of contract law relates to the consequences of breach and the resulting liability. As previously mentioned, Law n. De iure condendo , the law could allow both the surrogate and the contracting parents to withdraw their consent up until the uterine transference of the embryos without being in breach, provided that the expenses already incurred have been paid.

If not, it means that after signing the contract, any change of mind will be considered a violation of the surrogacy contract and the legal consequences of breach will apply, namely, the payment of damages. Nonetheless, this specific contract cannot be enforced against a defaulting party because there is no juridical mechanism to coerce the carrier into continuing or aborting a pregnancy if a woman aborts outside the legal limits she can face criminal sanctions; in the the case of surrogacy, even if the surrogate aborts in accordance with the existing legal provisions, she still can face some consequences under contract law, because she will be breaching the surrogacy contract and might have to pay compensation to the contracting parents ; nor can the contracting parents be forced to receive a child they do not want.

The consequences for failure to perform are legally provided for under contract law: The damages are more easily calculated when there is a well-drafted surrogacy contract, hence, the contract's content and its drafting assume relevance Perdue, But the judicial enforcement of this contract, as provided in contract law, is generally not possible in surrogacy.

However, in the surrogate's case there is a scenario in which the contract can be enforced, even against her will: The content of Law n. Thus, if there is a court order requiring the surrogate to deliver the child to the contracting parents it seems that it must be complied with, even by force, as any other court order would be, because there is no special provision in this regard. It may be the case that courts refuse to issue such orders, but the fact is that Law n. One of the limitations that can be pointed to in the existing law is its scope, because surrogacy arrangements have been allowed only under very restrictive scenarios: The law also includes a kind of open clause: This is a wiser solution than to exhaustively specify the situations allowed.

However, the question arises: For instance, is being postmenopausal a clinically justifiable situation? Age is certainly an obstacle to reproduction derived from biological conditions. In effect, age affects the ability to carry a pregnancy, due to uterine fibroids, thyroid conditions or even recurrent miscarriages. However, can it be considered 'clinical' and 'justifiable'? Or, alternatively, is the adjective 'clinical' intended to describe obstacles to reproduction derived from diseases, a classification that does not suit menopause? The fact is that in Portugal private clinics have always accepted older female patients that could not become pregnant precisely because of their age.

In public hospitals the situation is different, because the National Health Service only provides reproductive treatments to younger women, supposedly taking into consideration the success rate of these treatments. In other words, because we are dealing with public resources, that are always scarce, the lawmakers have decided to pay only for treatments that guarantee a reasonable level of success. But in private facilities this limitation is not applicable and they frequently use ART in older patients because age was considered a type of infertility in the context of Article 4.

This norm used to only allow ART treatments in cases of infertility or where there was a risk of transmitting a serious genetic or hereditary condition. However, nowadays it has a different content and states that ART can also be used to facilitate reproduction in the absence of a male partner. Therefore, Article 4 has now a number 3 in which it is stated that ART techniques can be used by every woman, regardless of whether there is an infertility diagnosis or the risk of transmitting a disease.

Isabel Morais

Thus, the above-mentioned requisites are only valid for heterosexual couples. Evaluating the existence of 'clinical justifiable situations' has been designated a task for the CNPMA.

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This solution has raised some criticism, especially from the Bar Association, that has alleged that the CNPMA is not entitled to solely decide such a decisive matter, which should ultimately be decided by the courts. Still another objectionable issue is the total lack of allusion to the child's best interest, usually a critical matter in the regulation of surrogacy Lewis, Probably the reason for the legal disregard of this criterion is the fact that under Portuguese law surrogacy is strictly a contractual matter and not a conflict between filiation claims.

In consequence, any case to be discussed in court will be analysed as a contract breach and not as a child custody dispute, whereas it only makes sense to invoke the child's best interests in custody disputes. The criminalisation of surrogacy has also been one of the main targets of criticism.

Surrogacy was already criminalised under the previous legal regime, a criminalisation that has persisted, although in clearer terms. Nonetheless, the main problem has not been that the law is dubious, but that criminalisation in itself is inappropriate. Indeed, there is no legal value to be protected by designating surrogacy as a crime, and consequently there are no legal grounds for construing it as a crime Sousa, Some scholars have said that the norm protects human dignity, and they have tried to qualify it as a juridical value to be protected by criminal law.

However, this qualification does not suit human dignity, which is the grounds for every single juridical value but is not in itself a juridical value, due to its vagueness and abstraction, as it was underlined by Prof. Faria Costa, in the Report presented by the Superior Council of Magistracy about one of the previous drafts of this law Conselho Superior de Magistratura, Thus, the crime of entering into surrogacy arrangements cannot be based on the protection of human dignity.

What is at stake here is the contractualization of gestation being considered immoral. However, criminal law cannot be used to protect morals and this basic principle of criminal law deprives the crime in question of a proper legal basis. In this sense the new version of the law is even more censurable because it expands the scope of criminalisation to include some cases of non-paid contracts.

The greatest weakness of this law, however, is that it does not address many of the relevant issues. In fact, although contractual freedom certainly plays an important role in surrogacy arrangements, the legislators should have had a stronger intervention, as it happens in every other contract in which there is the risk of the dominant party abusing the weaker one see, for instance, the case with labour contracts, which obviously, et pout cause , count with a very detailed legal regulation Stehr, The Portuguese law on surrogacy does not provide any regulation regarding the surrogacy contract's content.

Of course, contractual freedom plays an important role in this regard and the success of the arrangement largely depends on vesting the parties with the power to decide which clauses will rule their relationship. In any event, the clauses included in the surrogacy contract are subject to judicial scrutiny to avoid abuses, and the law is still required to establish some fundamental rules and limitations to be respected by the parties. Otherwise, chances are that one of the parties will end up dominating the other Raposo, These different reasons for having a lawful abortion can be used by the surrogate and are solely dependent on her decision, because according to the law the carrier is the only person who can make decisions regarding abortion.

The answer might be different if Article of the Penal Code used the expression 'mother' to identity the person entitled to decide, because in surrogacy arrangements the 'mother' is the female member of the contracting couple. However, this has not been the case, and actually Article of the Penal Code has always used the expression, 'the pregnant woman' or simply 'the woman', obviously referring to the carrier. The surrogate has autonomy to abort, just as any other carrier would.

The only difference is that in this particular scenario the surrogate could be asked to pay the contracting parents compensation for an unlawful abortion, in other words, for a pregnancy termination that complied with criminal law but was done in violation of the surrogate's contractual obligations and the contracting parents' desires. However, it is undetermined just how far the contract can go in this regard. Can the contracting parents include a clause forcing the surrogate to abort in case the prenatal diagnosis detects a severe malformation or disease attacking the unborn Forman, , or simply because they are no longer interested in keeping the arrangement and they are still within the 10 week window for having a lawful abortion?

The facts is that there is no scenario in which a surrogate can be forced to abort, not even by the genetic parents, for the simple reason that the unborn is 'living' inside the surrogate's body. It could not be otherwise, given that abortion must be decided by the pregnant woman, even though this basic and unquestionable rule assumes that she is also the one genetically connected to the child. So, no clause included in the contract in this regard can be used to force the surrogate to abort.

There is, however, another possible scenario: Nonetheless, once again, how can she be prevented from doing so and be forced to continue with the pregnancy? Of course, whenever abortion does not correspond to any of the specific scenarios foreseen in criminal law, the carrier is placed at risk of a criminal conviction. Moreover, even if it is lawful, the carrier could be liable for violating the contract, with legal consequences. In sum, surrogacy contracts can, and actually should, include some arrangements for abortion, with the aim of moderating the participants' expectations and hopefully avoiding litigation, on the one hand; and of identifying the obligations that must be complied with and the damages to be compensated, on the other.

However, at the end of the day none of those clauses can be enforced because the last word always rests with the surrogate, and the best the contracting parents can envisage is compensation for damages, which obviously is insufficient to cover their multiple losses, especially those of a non-patrimonial nature. Thus, the payment of compensation, and even the penalty clauses in a contract, are primarily intended to motivate the surrogate to comply with her contractual obligations.

The first is the relationship between abortion and compensation. In effect, there is an issue regarding whether the decision to abort or not to abort can lead to the payment of compensation to anyone. Set up a giveaway. There's a problem loading this menu right now. Learn more about Amazon Prime.

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