Key facts of the case:
The Constitutional Court examined a request for an abstract review of constitutionality made by a Group of Members of the Portuguese Parliament related to: the insertion in the Law on Medically Assisted Procreation (MAP), approved by Law 32/2006, of 26 July, of some norms regarding surrogate gestation; the rule of anonymity of donors and that of the surrogate mother; the rule that waivers the ex-officio investigation of the paternity of a child whose mother, regardless of her marital status and sexual orientation, has had recourse to Medically Assisted Procration techniques.
Key legal question raised by the Court:
The Constitutional Court should decide if the following articles of Law 32/2006 of 26 July were in accordance with the Portuguese Constitution: article 8 (4), (10) and (11) and article 8 (2) and (3), in the part that allows for the celebration of surrogate gestation agreements on an exceptional basis and with prior authorisation; article 8 (8), in connection with article 14 (5), in the part where it does not allow for the revoking of the consent of the surrogate mother until the child has been delivered to the beneficiaries; article 8 (1), in the part that imposes an obligation of absolute confidentiality in respect of persons born as a result of medically assisted procreation by means of donation of gametes or embryos, including in situations of surrogate gestation, on the recourse to surrogate gestation or surrogate gestation procedures and on the identity of the participants in such procedures.
Outcome of the case:
The Constitutional Court decided that those articles of Law 32/2006, of 26 July, violated articles 26 (1), 36 (1) and 69 (1) of the Portuguese Constitution. Article 26 (1) establishes that everyone is accorded the rights to personal identity, to the development of personality, to civil capacity, to citizenship, to a good name and reputation, to their image, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination. Article 36 (1) says that everyone has the right to form a family and to marry under conditions of full equality. Article 69 (1) underlines that with a view to their integral development, children have the right to protection by society and the state, especially from all forms of abandonment, discrimination and oppression and from the improper exercise of authority within the family or any other institution.
The human body and its parts should not, as such, be the source of any profits.
In the same way, the Charter establishes, in article 3 (2) (c), that, in the fields of medicine and biology, the following must be respected in particular: (c) the prohibition on making the human body and its parts as such a source of financial gain.
It is not surprising, therefore, that in the legal systems that expressly establishe the dignity of the human being as a fundamental inviolable good - and today, according to article 1 of the CDFUE, in conjunction with open clauses of fundamental rights, this would apply not only to the European Union itself but also to the generality of its Member States - the question of the compatibility of the principle of the gestation of substitution with that value should be raised.
«O corpo humano e as suas partes não devem ser, enquanto tal, fonte de quaisquer lucros.»
No mesmo sentido, a Carta dos Direitos Fundamentais da União Europeia (“CDFUE”) estabelece no seu artigo 3.º, n.º 2, alínea c), que, no domínio da medicina e da biologia, deve ser respeitada «a proibição de transformar o corpo humano ou as suas partes, enquanto tais, numa fonte de lucro».
Daí não surpreender que nos ordenamentos que consagram expressamente a dignidade do ser humano como um bem fundamental inviolável – e hoje, nos termos do artigo 1.º da CDFUE, em conjugação com cláusulas abertas de direitos fundamentais ou com diretrizes de interpretação conforme (e sem prejuízo do âmbito de aplicação da mesma Carta previsto no seu artigo 51.º), tal vale não só para a própria União Europeia, como para a generalidade dos seus Estados-Membros –, se suscite o problema da compatibilidade de princípio da gestação de substituição – isto é, logo num plano conceptual do próprio instituto jurídico recortado segundo um determinado perfil –, com aquele valor.