O contrato de gestação de substituição no ordenamento jurídico português

: o designado direito ao arrependimento da mulher gestante

Abstract

The present work analyzes the surrogacy regime in the Portuguese legal system. It was introduced by Law no. 25/2016, dated 22 August, in the Medically-Assisted Procreation Law, derogating the original version that expressly prohibited it and menacing with nullity any contracts celebrated, being considered the mother the woman who gave birth. It is called a surrogacy any situation in which a woman is willing to carry a pregnancy on behalf of another person and to “surrender” the child after childbirth, renouncing the powers and duties of motherhood, only being admitted as an exception, if certain assumptions are verified. The Constitutional Court ruled on the unconstitutionality of some rules of its regime, issuing the Decisions No. 225/2018 and 465/2019 of the Portuguese Constitutional Court. Aspects of the surrogacy contract are addressed, such as the characteristics of the contract, the consequences of its invalidity, the ways of forming the bonds of filiation to the child born with the use of this contract; the “right to repent of surrogate”, the breach of the contract and the rupture of the commitment to the parental project in its different phases. The work concludes that the requirements imposed by the Constitutional Court as to the surrogate right to unmotivated disconnection may imply the inadmissibility of the principle of the surrogacy contract, in the way that it removes a characteristic that constitutes its essential core. The establishment of a regime according to the Constitutional Court's dictates will mean that the surrogacy in Portugal is not a true surrogacy and that the pregnant woman is not an authentic surrogate.

Date of Award	12 Nov 2020
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Rita Xavier (Supervisor)