- LEGAL OPINION-
October 31st, 2014
To: SUBROGALIA
C/Balmes, 243, 1a planta
08006 Barcelona
Spain
P: +34 93 184 51 67
F: +34 93 298 88 64
Sub:Legal Opinion in respect of the possibility of an unmarried single male to
apply for and acquire the required court decision granting the judicial
permission to proceed with surrogacy, according to the Greek Law.
The present opinion is confined to matters of the Greek jurisdiction, including no
opinion with regard to any system of law other than the laws of the Hellenic Republic.
This opinion is given for SUBROGALIA’s service sole benefit and may not be disclosed or
relied upon by any other person without our prior written consent.
The articles 1455-1460 of the Greek Civil Code define the conditions which shall be
met in order for any method of medically assisted human reproduction to be
implemented (general conditions) as well as the conditions which shall be met
specifically for the permissibility of the surrogacy.
The general conditions include the incapability of natural reproduction due to
medical reasons (art. 1455 par. 1 sub. a’ Civil Code) and the medical assistance to
reproduction only for couples of different gender and unmarried singe women
and not to couples of the same gender or unmarried single men.
On this regard there have been two opinions formed by the legal community of
Greece:
a)
The first one was that the lack of explicit law provisions regarding the right
of an unmarried single man for medically assisted reproduction has not been an
omission but yet an intentional choice of the Greek legislator, who deliberately
didn’t want to include within the protective legal framework the same treatment for
a man as applicable for a woman, due to the natural difference of the two genders
which is the most crucial factor for legal issues related to surrogacy.
An indicative court decision reflecting the stance of the Greek jurisdiction regarding
the impossibility of a single male to apply for and acquire the required court
decision granting the judicial permission to proceed with surrogacy is the one
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rendered by the First Instance Court of Athens under No. 2287/2008 in
conjunction with the decision No. 3357/2010of theAppeal Court of Athens and
the relevant opinion of theLegal Counsel of the Greek State No. 261/2010.
With its decision No. 2287/2008, the First Instance Court of Athens accepted the
application filed by a single man for surrogacy in Greece. However, the Public
Prosecutor (who has the role of a litigant in this kind of proceedings by virtue of the
art. 748 par. 2 of the Greek Code of Civil Procedure) filed an appeal versus this
decision asking for its rejection on the grounds that the Greek legislator’s aim was
to allow the medically assisted reproduction only for women and not for men. The
appeal reiterated that this difference has been implied by the law due to the actual
different nature of the two genders, in the sense that as long as it is only the woman
who gives birth, only her may have the relevant incapability which could justify the
protection of the law and the right to proceed to the medically assisted
reproduction. After all, if a single male wishes to obtain a child, he must again
proceed to the surrogacy, which implies and demands the protection of an
incapability which however is not his (of the male). The appeal of the Public
Prosecutor has been accepted and the judicial permission, which was given to the
single male at first degree, has been cancelled.
b)
The second legal opinion regarding the issue at question, was that this lack of
law provisions regarding the permissibility of surrogacy for single men in Greece,
constitutes an unavoidable gap (blank law) which shall be filled bythe overall
proportional implementation of other respective provisions as foreseen by the
Greek Civil Code.
This part of the Greek legal science supports that the right for medically assisted
reproduction is protected by art. 5 par. 1 of the Greek Constitution, which can be
forbidden only when it is exercised in breach of or contrary to other people’s rights,
the Constitution or morality.
In view of this approach, the L. 3089/2002 seems to be rather inconsistent with the
art. 4 of the Constitution because:
 From the one part, it gives the right of medically assisted reproduction to an
unmarried single female, while denying the same right to an unmarried single
male.
 From the other part, it gives the right of medically assisted reproduction to a
female who is still alive and her husband or companion has predeceased before,
while at the same time it denies the same right to a male who is still alive and
his wife or companion has predeceased.
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The above provisions involve clearly a flagrant discrimination of the persons who
are interested to the solution of the medically assisted reproduction, which cannot
be justified whatsoever based on the art. 4 par. 1 and 2 of the Constitution.
The scientists who are in favor of this approach insist that the blank law created in
respect to the right of the unmarried single male to medically assisted reproduction
must be filled by the overall proportional implementation of the articles 1455, 1456
and 1458 of the Greek Civil Code. Obviously in this case it must be underlined that in
order for an unmarried single male to be entitled to medical assistance on
reproduction beyond the borders of his gender (via an egg donation and the usage
of the surrogates’ mother uterus), there must be a proven need for medical
assistance of the prospective single parent which would not allow him in any case to
reproduce naturally even if he was in a pair with a person of the opposite gender,
exactly as it is also required for an unmarried single female to be entitled to medical
assistance on reproduction beyond the borders of her gender (via a sperm
donation).
Concerning the blank law created in respect to the right of a male who is still alive
and his wife or companion has predeceased, they believe that it shall be filled by the
overall proportional implementation of the articles 1457 and 1458 of the Greek Civil
Code.
On 2009, theFirst Instance Court of Thessaloniki, being more in favour with
the above mentioned liberal approach, issued its decision No. 13707/2009
accepting in full the application filed by an unmarried single man asking for judicial
permission for surrogacy. The Judge interpreted the relevant law provisions in a
wider spectrum, well in accordance with the above core principals of the Greek
Constitution. As of today, no appeal has been filed versus this decision.
CONCLUSIVE REMARKS
The Greek jurisdiction has shown a rather contradictory stance regarding the
possibility of an unmarried single male to apply for and acquire the required court
decision granting the judicial permission to proceed with surrogacy. Year by year,
the Greece courts tend to leave behind the so far conservative approach on this
issue, with the judicial permission for unmarried single males to find whatsoever a
much more favourable grounds via the courts of Thessaloniki rather the ones of
Athens.
OUR ADVICE
SUBROGALIA should be careful on how to market the surrogacy for unmarried
single men in Greece, in a way that that the client must fully comprehend and
approve the legal risk involved beforehand.
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