Altruistic surrogacy and institutional non-viability: Regulatory design lessons from Portugal

Abstract

Altruistic surrogacy is often presented as a regulatory compromise reconciling ethical concerns with access to assisted reproduction. In practice, however, some altruistic-only regimes fail to provide a legally usable framework. This article examines conditions under which surrogacy regulation becomes institutionally non-operable, producing legal availability without practical access. Focusing on Portugal, it shows how repeated legislative intervention, and regulatory non-implementation prevent a stable pathway from authorisation to legal parentage. Drawing on legal analysis informed by institutional and economic reasoning, the article examines how altruistic restriction, strong protection of gestational autonomy, and centralised administrative authorisation increase transaction costs, undermine legal certainty, and distort reproductive labour allocation. The Portuguese experience highlights a broader challenge: when regulatory design prioritises restrictive safeguards while excluding engagement with compensation and incentives, the framework may lack operability. The article derives lessons on legal design, enforceability, and institutional incentives, showing that viable surrogacy regulation requires attention to operability and economic dimensions of reproductive governance.