Under Portuguese law (Civil Code, Articles 1796-1874, Diário da República), parentage is determined by:
(a) The birth mother, who is automatically recognized as a legal parent at birth (Article 1796).
(b) The biological father, who is presumed to be the legal parent if married to the mother (Article 1803) or if he acknowledges paternity (Article 1840). For unmarried couples, the father must formally acknowledge the child or establish paternity through court proceedings (Article 1864).
In cases of informal sperm donation (e.g., at-home artificial insemination or natural insemination), the donor may be recognized as the legal father if he acknowledges paternity or if a court establishes paternity based on biological evidence or intent to parent (Article 1868), particularly if he is involved in the child’s life post-birth.
Assisted Reproduction:
In Portugal, gamete donation is regulated under Law No. 32/2006 on Medically Assisted Procreation (Lei n.º 32/2006, de 26 de julho, Diário da República), updated by Law No. 17/2016. “Donor-assisted human reproduction” (DAHR) involves donated gametes used in licensed fertility clinics (Article 4). Note: Informal sperm donation outside clinical settings is not regulated and is generally considered illegal under this framework.
DAHR is permitted for heterosexual couples, same-sex couples, and single women since 2016 (Law No. 17/2016, Diário da República). Donors must be 18-45 years old, healthy, and consent to anonymity, though a 2019 Constitutional Court ruling (Acórdão 225/2019) allows children to access donor identity in exceptional circumstances (e.g., serious health issues).
Sperm Donor Agreements:
In regulated DAHR, the donor is not a legal parent. Law No. 32/2006 ensures donors have no parental rights or responsibilities (Article 15), and the intending parents are recognized as legal parents at birth (Article 8). Note: Informal sperm donation lacks this protection—donors risk being recognized as legal parents under general paternity laws (Article 1803 or 1868), especially if they acknowledge the child or are involved post-birth.
For natural insemination (NI) or informal AI, Portuguese law does not provide specific exclusions for donors. A donor could be deemed the legal father if paternity is established, particularly if the mother is unmarried and the donor acknowledges the child. Courts may also intervene to establish paternity if there’s evidence of intent to parent.
Surrogacy:
Surrogacy is permitted in Portugal under strict conditions since Law No. 25/2016 (amended by Law No. 48/2017, Diário da República). It must be altruistic, involve a genetic link to at least one intending parent, and be approved by the National Council for Medically Assisted Procreation (Article 8). Commercial surrogacy is prohibited.
The birth mother (surrogate) is initially the legal parent, but intending parents can apply for parentage transfer post-birth, with the surrogate retaining rights to revoke consent for up to 20 days after birth (Article 8).
International surrogacy arrangements are not recognized unless they align with Portuguese law, often requiring legal proceedings to establish parentage.
Parentage Agreements:
In regulated DAHR, parentage is formalized through consents at fertility clinics, with intending parents recognized at birth registration (Article 8). Informal agreements (e.g., co-parenting or donor contracts outside DAHR) lack legal standing in Portugal. Courts may need to intervene under Article 1868 to establish or contest paternity if disputes arise.
Informal arrangements carry significant legal risks, as Portuguese law prioritizes biological parentage over intent in non-regulated settings. A donor could claim paternity, or the mother could seek child support, depending on judicial interpretation.