The contract does not need to follow any formality, although in common practice it is often requested by courts to have the signatures of the parties notarised by a public authority or a notary public. Also, in case the male partner of the Intended Mother is not married to his female partner, he has to appear before a notary and provide his consent in writing as a proof of voluntary recognition of his parental obligations towards the child.
How much can a surrogate receive for her expenses?
According to article 13 par. 4 of Law 3305/2005, an exception to the prohibition against payments to the surrogate is the coverage of her “reasonable expenses”. As such, according to article 13 par. 4 of Law 3305/2005 are considered:
- the payment for any expenses necessary for the artificial insemination procedure, the pregnancy, the delivery and the childbed (namely any costs directly linked to the impregnation of the surrogate, the pregnancy and the childbirth costs, i.e. the medical care of the surrogate, her clothing, her transportation to and from the medical clinic, the costs of the childbirth and after – birth treatment, the legal costs of the application for the approval of the surrogacy agreement, the medical and psychological assessment of the surrogate)
- the restitution for any damages incurred and lost wages by the surrogate, because she left her work or she took an unpaid leave of absence during the periods (and because) of insemination, pregnancy, delivery and childbed.
The aforementioned amount (under 2.2.) is regulated by the National Independent Authority for Medically Assisted Reproduction and is currently set at € 10,000.00. Hence, any other payments in relation to surrogacy are prohibited.
What is the next step after the conclusion of a surrogacy agreement?
Greek legislation, in order to facilitate the transfer of parental authority to IPs, has adopted an “ex ante” model of surrogacy, from the moment that the surrogate and the IPs draft an agreement and before the surrogate’s impregnation. In this perspective, according to Greek Law, the agreement is subject to a Court’s approval in order to render it enforceable and effective, and make it possible for IPs to be registered as the legal parents immediately upon the birth of the child.
Hence, the next step after the conclusion of a surrogacy agreement is to file an application before the competent Court. The applicant before the Court is the Intended Mother, while according to article 740 of the Greek Code of Civil Procedure, as recently amended, the competent Court to authorize such a surrogacy agreement is the Multi Member Court of First Instance where the Intended Mother or the surrogate mother resides. The aforementioned application is served by a bailiff to the Public Prosecutor, while it is up to the Court to ask the Intended Mother to serve the application to all the other parties of the procedure (i.e. her husband/partner, the surrogate and her husband/partner). As soon as the agreement has been approved by the competent Court, it is rendered valid and legally binding. This procedure is the upper guardian of the rights of the contracting parties and of the interests of the child.
What is examined by the Court and how long does it take to have the agreement approved by the Court?
The Court verifies that the agreement complies with domestic law before the surrogate’s impregnation. Basically, the Court must confirm:
- that all the parties concerned have consented freely to the procedure, after having been informed of the risks involved, as well as of their respective rights and duties (especially the surrogate’s decision to terminate the pregnancy)
- that the recourse to surrogacy is a response to medical necessity (since the choice of
- surrogacy for social reasons is not acceptable by law)
- that the parties have entered into the agreement in “good faith” and only for altruistic reasons
- that all the parties (IPs and surrogate) have been assessed as suitable to execute the terms of the surrogacy agreement
- that the Intended Mother does not exceed the age of fifty (50).
Although no requirement was in existence with regard to the age of surrogate mother, recently a new Code of Conduct for ART has been published (Decision No 73/24.01.2017 of the Greek Authority for ART/Official Gazette 293/07.02.2107) according to which the surrogate
should be between 25 – 45 and she should have already give birth to at least one child of her own.
In general, the Court limits itself to a procedural review of the various documents in the file submitted to it. Documents that are usually submitted to the Court include:
- a recent medical examination of IPs and the surrogate mother to exclude infectious diseases (HIV I/II; Hep B/C; VDRL) as well as a psychological evaluation to ensure the surrogate is mentally fit,
- the surrogacy agreement,
- a medical report for the Intended Mother, stating the medical reason why she cannot conceive. Similarly, the surrogate is required to provide a medical opinion on her suitability as a gestational carrier,
- proof that either the IPs or the surrogate are permanent or temporarily residing in Greece (i.e. lease contracts, proof of expenses occurred in Greece etc.)
The hearing of the case is set approximately within one (1) month of the filing of the application before the Court of residency of either the IPs or the surrogate. In practise, in some courts, both the surrogate mother and IPs have to appear before the Court on the hearing date with their lawyer, whilst in some Courts they do not have to appear and they can be represented by their lawyer. The ruling is issued in a period from 2 to 4 months of the hearing date, but it always depends on the workload of the Court.
Whose name appears on the baby’s birth certificate?
According to articles 1458 and 1464 GCC, the child that is born after the drafting and the confirmation by the Court of a surrogacy arrangement is considered as the child of the IPs from his/her birth and no adoption or other Court proceedings is needed. The obstetric hospital follows the typical procedure for issuing the birth certificate and the IPs should submit the certificate, along with the Court decision, to the Civil Registry and declare the birth of the child within ten (10) days. In the Birth Certificate only the name of the IPs are mentioned and no mention is made to the surrogacy proceedings or the court decision. However the Court decision is kept on the files of the Civil Registry.
Can the surrogate change her mind and keep the child or become the legal mother of the child?
No. In such a case, the surrogacy contract, as approved by the Court, can operate as a safety net and the IPs can apply to the Court and compel her to adhere to the terms of the agreement. The only exception allowing the surrogate to become the legal mother of the child is when (despite the provisions of the law) the child is genetically related to her (traditional surrogacy). In such a case, within six (6) months after the birth of the child, the surrogate or even the Intended Mother can challenge the establishment of legal parentage as per article 1464 par. 2 of GCC. After the final, irrevocable court decision the surrogate becomes the legal mother of the child. With regards to the paternity rights, the law provides that the father of the child will be the husband of the legal mother and he cannot refuse his status as the legal father if he consented to the surrogate’s fertilisation.
Will the child acquire greek citizenship automatically at birth?
Under Greek Law, the citizenship of a child is determined by the citizenship of its parents. Hence, children born through surrogacy in Greece will not acquire Greek citizenship on the grounds that they were born in Greek territory, unless either of the IPs is a Greek citizen or has a strong link with the Greek legal order. In essence, the child is born stateless until the IPs have undergone the appropriate home citizenship process with their respective embassy or local authorities. The process depends on the embassy and the laws governing surrogacy in the jurisdiction of IPs. In case that the IPs fail to obtain citizenship, then the Greek law has several provisions that could help the child to obtain Greek citizenship. However, it is worth noting that till now there is no such case with regards to children born through surrogacy in Greece and all IPs can travel back home either with provisional/emergency travel documents or with passport for their newborn babies.
Must the surrogate or intended parents live in Greece?
After the legal reform effected through article 17 of Law 4272/2014, in order to draft and execute a surrogacy agreement in Greece and ask for the Court to authorise it, it is sufficient if either of the two contracting parties (IPs or surrogate) resides, either permanently or temporarily in Greece.
Does Greek law allow single intended parents or same-sex couples to create their family through surrogacy?
According to the letter of the law, the IPs can be a married heterosexual couple or an heterosexual couple living in a civil partnership, as well as a single woman, while there is no provision for the single man. In the Greek legal theory and jurisprudence it is arbitrable whether the lack of provision for the single man is a gap in the law or whether the legislator did not want to give access to the single man. It is worth noting that two legal cases (Decision No 13707/2009 of the One Member Court of First Instance of Thessaloniki and Decision No 2728/2009 of the One Member Court of First Instance of Athens) defined this provision of law as unconstitutional and discriminatory towards single men, who do not have a female partner and are unable for medical reasons to have a child and in both cases the judge authorized the surrogacy agreements. In the second of the aforementioned cases though, the court decision was challenged by the Prosecutor and the Court of Appeal of Athens (Decision No 3357/2010) dismissed the application filed by the single man. Nevertheless, the possibility of a contrasting future court decision cannot be excluded, since the Greek judge, is not obliged to follow the judgement of another court.
As far as same the sex couples are concerned, a legally authorised surrogacy arrangement is currently not available, given that the latest legal reform, through the introduction of Law 4356/2015, grants same-sex couples the option of having civil partnerships, which offers them full marriage rights but not yet the right to adopt children or enter into surrogacy agreements. However, a new legislation in the future giving access to full parental right also for same sex couples cannot be excluded.
Is a genetic link with IPs necessary?
Greek law does not require a genetic relationship between the child and the IPs, hence IPs can resource to either egg donation or sperm donation or embryo donation. However, IPs do always have to check whether this is compatible with their local law rules, given that in some jurisdiction genetic link to at least one parent is necessary. In case gametes of another person are used, the identity of the donor will remain undisclosed, thus guaranteeing the anonymity of the donor and only access to donor’s medical files is allowed. The files are kept in a confidential archive without the indication of the donor’s identity. Only the child may have access to this archive and only for reasons related to his health.
