Legal and Bioethical Aspects of Surrogacy

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Review

HJOG 2026, 25 (4), 357-366 | doi: 10.33574/hjog.0642

Maria Anastasia Chatzi1, Themistoklis Dagklis2, Nikolaos Dagklis2, Apostolos Mamopoulos2, Maria Milapidou3

1Postgraduate Program “Contemporary Medical Acts: Legal Regulation and Bioethical Dimension”, School of Law, Aristotle University of Thessaloniki, Thessaloniki, Greece
23rd Department of Obstetrics & Gynecology, School of Medicine, Aristotle University of Thessaloniki, Thessaloniki, Greece
3School of Medicine, Aristotle University of Thessaloniki, Thessaloniki, Greece

Correspondence: Maria Anastasia Chatzi, Postgraduate Program “Contemporary Medical Acts: Legal Regulation and Bioethical Dimension”, School of Law, Aristotle University of Thessaloniki, Thessaloniki, Greece. E-mail: marianachat16@gmail.com

Abstract

Surrogacy is a form of medically assisted reproduction that raises complex legal and bioethical issues, as it challenges traditional concepts of motherhood, family, and kinship. This study is based on a review of Greek legislation on medically assisted reproduction, comparative analysis of selected European legal systems, and relevant case law of the European Court of Human Rights. The analysis demonstrates significant variation among European countries, ranging from strict prohibition to permissive or conditional legal frameworks. Greek law permits altruistic surrogacy under prior judicial authorization, aiming to balance reproductive autonomy with the protection of the surrogate mother and the best interests of the child. ECHR case law emphasizes the need for effective legal recognition of parent-child relationships, especially in cross-border cases. Surrogacy raises complex legal and bioethical challenges that require careful regulation. Greater legal clarity and a more coherent European approach are necessary to safeguard human dignity, reproductive rights, and the best interests of the child.

Keywords: Surrogacy, Bioethics, Greek law, ECHR, Reproductive rights.

Introduction

The Right to Reproduction – Constitutional Foundations in the Greek Legal Order

The right to reproduction constitutes a fundamental expression of human personality and is intrinsically linked to the individual’s freedom of self-determination. It manifests both in its negative dimension, as the freedom not to procreate, and in its positive dimension, as the right to have children, either through natural means or through medically assisted reproduction. Advances in medical science have expanded the scope of reproductive autonomy, enabling procreation through assisted methods while simultaneously raising new questions regarding the protection and limits of this right [1, 2].

Within the Greek constitutional framework, one view considers the right to reproduction to be grounded in the constitutional protection of the family (Article 21(1) of the Constitution). A second view locates its basis in the protection of private and family life (Article 9(1) of the Constitution). A third perspective associates it with the right to the free development of personality (Article 5(1) of the Constitution) [3].

Materials and Methods

This study is based on a review of Greek legislation on medically assisted reproduction, comparative analysis of selected European legal systems, and relevant case law of the European Court of Human Rights.

Results

Medically Assisted Reproduction in Greece

The first birth of a child through in vitro fertilization (IVF) in Greece took place in 1982[4]. In 2002 and 2005, the two main laws regulating medically assisted reproduction were introduced, establishing the conditions, procedures, and limits governing the application of these methods. Under the current legal framework, recourse to medically assisted reproduction is, as a general rule, permitted to adult individuals within the age of natural reproduction (for women, up to 54 years of age), with their written and informed consent. Such methods are applied in cases of inability to achieve natural procreation or in order to avoid the transmission of a serious disease, while they are also permitted for the purpose of fertility preservation. These methods are carried out in specially organized assisted reproduction units, operating under the supervision of the National Authority for Medically Assisted Reproduction [5, 6].

The Regulation of Surrogacy in Greece

Surrogacy is defined as the practice whereby a woman undertakes a pregnancy and carries it to term with the intention of relinquishing the child after birth to other persons[7]. In Greece, surrogacy was legally recognized in 2002. Under Greek law, the current framework permits only “partial” surrogacy (use of the oocyte of the intended mother or a third-party donor), while excluding “full” surrogacy (use of the oocyte of the gestational carrier), in order to prevent the significant psychological burden that would arise from the deprivation of legal motherhood from the genetic mother[8]. Regarding the legal requirements, the intended mother must be within the age of natural reproduction (up to the age of 54), there must be a medically certified inability to carry a pregnancy, a written agreement without financial consideration must be concluded between the parties, and prior judicial authorization must be obtained. Furthermore, any form of financial consideration is prohibited, except for coverage of expenses and compensation for the physical burden borne by the gestational carrier, while a thorough psychological assessment of the latter is also required. The residence of both the intended mother and the gestational carrier must be located in Greece. Legal motherhood is attributed to the woman to whom judicial authorization has been granted and may be challenged only if it is demonstrated that the oocyte originates from the gestational carrier [9]. More specific provisions governing the application of the method are set out in decisions and in the Code of Conduct of the National Authority for Medically Assisted Reproduction, although these do not possess the same binding force as statutory law. In particular, it is provided that the gestational carrier must be between 25 and 54 years of age and must not have undergone more than two cesarean sections [10]. Within the same framework, the permissible compensation for the physical strain of the gestational carrier is further specified (EUR 10,000 in the case of a singleton pregnancy and EUR 15,000 in the case of a multiple pregnancy) [11].

Cross-border Application and Jurisprudential Approach of the European Court of Human Rights (ECHR)

Access to surrogacy varies significantly across Europe: certain legal systems expressly prohibit it, others permit it only on an altruistic basis, while others leave the matter unregulated. This lack of uniformity encourages recourse to surrogacy abroad and contributes to the emergence of so-called reproductive tourism. Such inconsistency between national legal systems gives rise to legal conflicts, as States refuse to legally recognize parental relationships established abroad, resulting in a growing number of cases being brought before the European Court of Human Rights (ECHR).

Comparative Analysis of National Frameworks: The Heterogeneity of Legal Paradigms in Ukraine, Italy, and Denmark

The Liberal/Commercial Approach: Ukraine

Ukraine constituted, at least until the outbreak of the war, a major international destination for surrogacy, adopting a liberal regulatory framework that permits surrogacy in both its altruistic and commercial form. Ukrainian law requires a genetic link with at least one intended parent and provides for their recognition as legal parents from birth. However, the framework presents a number of ambiguities, one of which concerns the fact that, although the automatic recognition of the intended parents is provided for, the completion of the registration process also requires the consent of the gestational carrier, thereby creating legal uncertainty. Furthermore, in cross-border cases, issues of nationality and legal recognition of parenthood arise, particularly where the countries of origin of the intended parents prohibit the method [12, 13].

The Prohibitive Approach: Italy

Italy adopts one of the most restrictive legal regimes in Europe, imposing a complete and explicit prohibition of surrogacy, irrespective of whether it is altruistic or commercial in nature. This prohibition is accompanied by criminal sanctions for those involved, reflecting the particularly protective stance of the Italian legislator against the potential instrumentalization or commodification of the female body.This approach is also reflected in the position of the Italian authorities with regard to the legal effects of surrogacy arrangements carried out abroad, as parental relationships established through surrogacy in another legal order are not automatically recognized, even where the procedure has been lawfully conducted in a country that permits it. Such refusal is primarily grounded in the protection of public policy, as well as the protection of the woman and the child. However, Italian case law has acknowledged that a complete and categorical refusal to recognize parental relationships established abroad may jeopardize the best interests of the child. In this context, it has been accepted that, although the transcription of birth certificates of children born through surrogacy may be considered contrary to public policy, the parental relationship may be established through the legal mechanism of “adoption in special cases” (adozione in casi particolari), in order to safeguard the already established emotional bonds between the intended parents and the child[14].

The Restrictive/Conditional Approach: Denmark

In Denmark, surrogacy has traditionally been approached with caution, resulting in the prohibition of mediation and advertising of relevant arrangements, with a view to deterring the commercial exploitation of women and children. Under Danish law, the mother is, as a rule, the woman who gives birth, which precludes the direct recognition of a parental relationship between the intended mother and the child. Consequently, the acquisition of legal motherhood by the intended mother was possible only through adoption. However, such adoption was not permitted where any payment or other consideration had been provided to the gestational carrier. The inadequacy of the previous framework in safeguarding the legal status of children born through surrogacy led to legislative reform, which entered into force on 1 January 2025. Under the new regime, the parental status of intended parents may be directly recognized, subject to specific conditions, in both domestic and cross-border cases, without discrimination on the grounds of sex or sexual orientation. In addition, Danish law draws a distinction between domestic and cross border surrogacy arrangements, as altruistic surrogacy is required for domestic cases, whereas no equivalent express requirement applies to international ones [15-17]. A comparative overview of the legal requirements and regulatory approaches to surrogacy in Greece, Ukraine, Italy and Denmark is presented in Table 1.

Cross-Border Parenthood and Surrogacy: Judgments of the European Court of Human Rights in C. v. Italy and K.K. and Others v. Denmark

The lack of uniformity in national regulations governing surrogacy gives rise to significant practical challenges. These issues arise primarily in cases of cross-border surrogacy and have led to a number of applications before the European Court of Human Rights (ECHR), which is called upon to strike a balance between the protection of the public policy of the Member States and the right to respect for private and family life (Article 8 of the European Convention on Human Rights – ECHR).

The case of C. v. Italy (application no. 47196/21 – Judgment of 31 August 2023) concerns a couple from Italy who had a child in Ukraine through surrogacy, with the father being the biological parent. The Italian authorities, applying the country’s strictly prohibitive legal framework, categorically refused to register the Ukrainian birth certificate in the civil registry, invoking its incompatibility with public policy. The Italian courts adopted a rigid and formalistic approach, rejecting both the request for full transcription and the request for partial transcription of the birth certificate, without examining the best interests of the child or indicating any alternative means of recognition. This refusal resulted in the child remaining in a state of legal uncertainty and being stateless in Italy.

The European Court of Human Rights held that this refusal constituted a violation of Article 8 of the European Convention on Human Rights, emphasizing that the margin of appreciation afforded to States is reduced where the personal identity and legal status of the child are at stake. Where a biological link exists, national authorities are required to ensure the effective and timely recognition of parenthood. Conversely, in the absence of a biological link, the Court recognizes a broader margin of appreciation as to the means of recognition. The protection of private life does not require the adoption of a specific mechanism (such as the transcription of a foreign birth certificate), but rather the availability of effective and expeditious procedures, such as adoption, capable of ensuring the substantive recognition of the parent–child relationship.

As regards the case of K.K. and Others v. Denmark (application no. 25212/2021 – Judgment of 6 December 2022), it concerns the legal recognition of twin children born in Ukraine through a surrogacy arrangement. The intended father was also the biological parent of the children. Even though the children acquired Danish nationality by virtue of their link with the biological father, the national authorities rejected the intended mother’s application for adoption. The refusal was based on Article 15 of the Danish Adoption Act, which prohibited adoption where payment had been made to the gestational carrier. In the present case, the Danish authorities did not provide any alternative means for the recognition of the relationship with the intended mother.

The European Court of Human Rights held that the refusal of the Danish authorities to allow adoption by the intended mother did not violate Article 8 of the Convention as regards family life, since the de facto family life had already been secured through the stable cohabitation of the children with their parents and the exercise of joint custody. However, the Court found a violation in respect of the children’s private life, as the absence of any other appropriate legal mechanism for the legal recognition of the parent–child relationship with the intended mother left them in a state of legal uncertainty.

The above judgments form part of a consistent line of case law of the European Court of Human Rights. The Court recognizes that States enjoy a wide margin of appreciation in regulating surrogacy; however, this margin is reduced where the personal identity and legal status of the child are affected. In this context, C. v. Italy requires the existence of effective and timely recognition where a biological link is present. Similarly, K.K. and Others v. Denmark demonstrates that the absence of a legal mechanism for the recognition of an already established relationship with the intended parent constitutes a violation of the children’s private life. The Court does not impose a specific method of recognition; rather, it requires the existence of an effective, appropriate, and timely legal mechanism capable of ensuring the recognition of the already established family reality and preventing situations of legal uncertainty for the children [24].

Discussion

Surrogacy raises significant ethical concerns, as it alters the traditional perception of motherhood. At the core of the debate lies the motivation of the gestational carrier, which directly influences the approach adopted by national legal systems. Depending on this motivation, surrogacy is distinguished between altruistic and commercial surrogacy, a distinction that leads to differing legal approaches.

The central ethical controversy concerns the potential economic exploitation of the reproductive process and whether pregnancy may legitimately constitute an object of financial transaction. In favour of remuneration, it is argued that it reflects the woman’s freedom of choice and right to self-determination, and that it constitutes a reasonable return for the physical and psychological burden and the risks associated with pregnancy. At the same time, it is argued that prohibition is ineffective in practice, leading to covert and unlawful payments that leave the gestational carrier unprotected [25].

On the other hand, commercialization conflicts with the principle of human dignity. Pregnancy cannot constitute an object of commercial transaction, as it gives rise to a profoundly personal bond between the mother and the child. The incorporation of motherhood into the rules of the market devalues human life and reduces the gestational carrier to a “paid worker” and the child to a “deliverable product”. This argument is further reinforced by the observation that commercial surrogacy disproportionately affects economically vulnerable women, who may be compelled to resort to it under conditions of financial hardship.

Within the Greek legal framework, the payment of remuneration is expressly prohibited (beyond the reimbursement of expenses and compensation for physical strain), as being contrary to human dignity. The legislator seeks to safeguard the altruistic nature of the process through prior judicial authorization and the prohibition of monetary remuneration. However, notwithstanding these explicit prohibitions, the payment of compensations and the high cost of medical procedures in private clinics create a broader economic context that reinforces the perception of commercialization, effectively excluding individuals with limited financial resources [26].

Even the altruistic form of surrogacy raises ethical issues. Altruistic offering, particularly between close relatives, raises questions as to the genuine autonomy of the gestational carrier, as her decision may be influenced by familial or emotional pressures. Furthermore, the method may cause confusion in family roles and may adversely affect the psychological development of the child, due to the abrupt interruption of the prenatal bond that develops between the fetus and the gestational carrier. However, within an appropriate regulatory framework, altruistic surrogacy is presented as the most balanced solution, compatible with the protection of human dignity [27].

Conclusions

The absolute prohibition of surrogacy does not constitute a realistic solution, as it leads to the development of non-transparent practices and encourages reproductive tourism, thereby resulting in the circumvention of national legal frameworks. This development increases insecurity for the parties involved and creates social inequalities, as access to the method depends on the financial ability to resort abroad. At the same time, prohibition may operate as a form of discrimination against women who are unable to carry a pregnancy.

Considering the increasing cross-border mobility, the need for a more coordinated European approach becomes evident. A feasible direction could be the development of a common regulatory framework at the European level, which would consider the interests of all parties involved, with particular emphasis on the protection of the child [28]. Within this context, consideration could be given to recognizing only partial surrogacy (with a prohibition on the gestational carrier also being the genetic mother), to reduce the risk of psychological imbalance.

A primary condition for ensuring the ethically irreproachable character of the arrangement remains the explicit prohibition of commercial surrogacy and the exclusive acceptance of altruistic surrogacy. In this direction, consideration could be given to limiting the assignment of gestation to persons who are related to the intended parents, as a measure to reinforce the genuine intention of offering and to reduce the incentive of financial gain. Furthermore, the requirement of prior judicial authorization (ex ante) is considered essential, as it ensures substantive judicial scrutiny of the agreement, including the detection of any unlawful financial consideration, and enhances the protection of the parties involved [29].

Finally, it is necessary to remove existing discrimination and to ensure equal access to surrogacy, irrespective of sex or sexual orientation, particularly given that for certain individuals, such as men, the method constitutes the only possibility of having a child with a genetic link [30]. Within the Greek legal framework, the exclusion of men from access to surrogacy, combined with the possibility of recognizing their parental status when the child is obtained abroad through surrogacy, creates a paradox. This paradox undermines the principle of equal treatment and renders the exercise of the right to reproduction dependent on the financial capacity of the persons concerned. The case law of the European Court of Human Rights highlights the safeguarding of the best interests of the child as a determining criterion, thereby limiting regulatory approaches that lead to inequalities.

Declaration of Generative AI in Scientific Writing

Generative AI tools were used exclusively for language refinement, translation assistance, and improvement of readability.

Conflict of Interest

The authors report no conflicts of interest.

Funding

No funding was received for this study. 

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