The new Portuguese law on surrogacy - The story of how a promisinglaw does not really regulate surrogacy arrangements

摘要

Since 2006, surrogacy arrangements have been expressly forbidden within the Portuguese legal order, in any one of its forms, and in some situations, it has even been criminalised. However, since August 2016, surrogacy has been allowed under certain restrictive scenarios, providing it follows several prerequisites. In spite of this progress, the 2016 amendment to the law has not been immune to criticism. One of its most debatable aspects is the lack of the surrogate's right to regret, although it is doubtful that surrogacy contracts will be enforced against a surrogate's wishes. But the weakest point of the new law is its failure to address some of the nuclear issues of surrogacy contracts, leaving solutions either to general contract law or to the clauses stipulated by the parties. Furthermore, it is unclear which clauses are allowed and which are forbidden under the law. This study describes the content of the new Portuguese surrogacy law, exposes its main fragilities and suggests solutions for matters not covered by the law. The conclusion is that a law full of promise fails regarding the issues it is supposed to regulate.