Gay surrogacy ban places Greece on human-rights collision course

Published at 10 Apr 2025

The Greek government’s proposals to outlaw surrogacy for male same-sex couples appears to contravene at least two articles of the European Convention on Human Rights.

Last week, Greece announced plans to prohibit surrogacy for single men and male same-sex couples, a move that has sparked considerable debate both domestically and internationally and ignited the ire of LGBTQ+ campaigners all over the world. According to Justice Minister Giorgos Floridis, who unveiled the proposed amendments, the legislation is needed to address ambiguities in the current legislation. He explained, "We are now clarifying unequivocally that the concept of inability to carry a pregnancy does not refer to an inability arising from one's gender. In other words, a woman may be unable to carry a pregnancy whether she is in a male-female couple […] or on her own.”

To put it another way, the government's position is that surrogacy should be accessible only to women who are medically incapable of bearing children, thereby excluding single men and male same-sex couples from this increasingly popular pathway to starting a family.

Greece’s LGBTQ+ community was buoyed by Greece’s legalisation of same-sex marriage and adoption rights in February 2024, a move which positioned the socially conservative nation as the first Christian Orthodox-majority country to do so. However, while that legislation was welcomed, the recent move to restrict surrogacy has led to concerns about the consistency of Greece's approach to LGBTQ+ family rights. Unsurprisingly, the Greek Orthodox Church, which opposed the 2024 same-sex marriage and adoption legislation, has welcomed these latest proposals, although with some reservations. In a television interview, Bishop Ieronymos of Larissa and Tyrnavos pondered the status of children already in same-sex-parent families, commenting: “Something that appears positive may not be. Children of such unions, especially from abroad, have already been recognised by civil registries and recorded as children of male couples. Now, this regulation – what will it do about what has already been done? Will it have retroactive effect?”

The Greek government has given several reasons for the proposed surrogacy restrictions, with Mr Floridis voicing concerns about Greece potentially becoming an international hub for surrogacy-related exploitation and human trafficking. He noted an increase in foreign women registering as single residents in Greece to become surrogates, often receiving compensation exceeding legally permitted limits. Whether these concerns are genuine, or are a contrived smokescreen for an adherence to traditional family structures, is impossible to divine.

THE BAN AND THE LAW

The Greek government's decision to prohibit surrogacy for single men raises important questions regarding its alignment with European Union law and broader European human rights standards.

Family law, including regulations on surrogacy, primarily falls within the jurisdiction of individual EU member states. Consequently, the European Union does not present a unified stance on surrogacy, leading to a diverse legal landscape across member states. For example, while some countries permit surrogacy under specific conditions, others, like Spain and Italy, have imposed complete bans on the practice.

However, beyond EU law, Greece is a signatory to the European Convention on Human Rights (ECHR), which mandates the protection of individual rights and freedoms, including the prohibition of discrimination. There is clearly an argument to be made that the exclusion of single men and male same-sex couples from accessing surrogacy services could be perceived as discriminatory under the ECHR, a perspective that is grounded in the principle that denying specific groups access to certain rights solely based on their sex or sexual orientation may violate anti-discrimination provisions. As a result, individuals or advocacy groups might challenge the Greek legislation before the European Court of Human Rights (ECtHR), arguing that it infringes upon rights protected by the Convention.

ECtHR case law regarding the equal treatment of gay and lesbian people should give some comfort to anyone seeking to challenge the proposals, with a raft of rulings making it clear that, while individual countries have the right to set their own laws regarding families, they must not discriminate against same-sex couples. Precedents which could form the basis for future legal challenges include X and Others v Austria [2013], in which a lesbian couple challenged Austrian adoption laws that prevented one partner from adopting the biological child of the other. In that case, the ECtHR ruled that Austria had violated Articles 8 and 14 of the ECHR, as its domestic laws allowed second-parent adoption in heterosexual partnerships but denied it to same-sex couples.

Similarly, in Taddeucci and McCall v Italy [2016], a same-sex couple challenged the denial of a family reunification residence permit because Italian immigration law granted such permits only to spouses (excluding same-sex partners as same-sex marriage was not recognised). As with X and Others, the court found Italy to have breached Articles 8 and 14 because it treated same-sex couples differently without objective justification.

Perhaps most pertinently, it is an ECtHR case brought against Greece in 2013 which fired the starting pistol on its long journey to legalise same-sex marriage, with the court ruling in Vallianatos and Others v Greece that excluding same-sex couples from civil unions was discriminatory under Article 14 in conjunction with Article 8.

EXPERT COMMENT

Louisa Ghevaert, the eponymous founder and CEO of the UK fertility- and family-law boutique Louisa Ghevaert Associates, adds some context, telling ICLG News that the decision “follows an all too familiar pattern. Concerns about human trafficking, exploitation of women, illegality and fraud has previously triggered sudden surrogacy bans in places like India, Nepal, Thailand and Cambodia”.

Turning to the Greek authorities’ historically heavy-handed approach, Ghevaert continues: “In recent years, there have been news reports that Greek authorities raided a fertility clinic in Crete and arrested staff on charges of falsifying medical records, mistreatment and human trafficking of vulnerable Eastern European women recruited as egg donors and surrogates.”

Ron Poole-Dayan, executive director of New York non-profit Men Having Babies, puts a slightly different spin on the situation, noting the Greeks' stance of mandating surrogacy only when there is a need for it – in other words, when a woman is unable to bear children. However, he sees that need as also applying to gay men, whose ‘need’ may not arise from a medical issue, but from the psychological imperative to have a family. Speaking exclusively to ICLG News, he believes that the only flaw in Greece’s approach is “a failure of the imagination” and to understand that “infertility is the inability to procreate without the help of medical assistance”, a definition that includes men.

Mr Poole-Dayan goes on to note how “more people are seeing men as being able to achieve their full human potential through parenting, equally capable of compassion and what it takes to rear a child without the involvement of a woman”. The problem in Greece (and elsewhere), he continues, is that “if you ask someone to draw a picture of childlessness, they will draw a sad woman and a supportive husband. They will not draw two men because we still have quite distinct gender roles when it comes to rearing children”. That said, the expansion of paternity leave in several jurisdictions indicates that societies all over the world are recalibrating how they view gender roles in the context of parenting, and the type of parental leave offered to men in many countries would have been unthinkable a generation ago.

So now, while the Greek legislature may consider the prospect of two gay men having a baby that is genetically related to one of them as equally unthinkable, there can be no doubt that – notwithstanding occasional curveballs pitched by more traditionalist governments – there is a clear direction of travel towards acknowledging that men’s desire to be a parent is equal to women’s, that two men can provide a happy, stable and loving home, and that the concept of childlessness does not only apply to women with fertility issues.

The proposed amendments are slated for parliamentary debate in the coming weeks. Given the diverse opinions and the potential impact on Greece's LGBTQ+ community, the discussions are expected to be robust and potentially contentious. As Greece navigates these complex issues, the balance between safeguarding against exploitation and ensuring equal rights for all citizens remains a delicate endeavour. The outcome of this legislative process will undoubtedly have profound implications for the future of family rights and LGBTQ+ equality in the nation. And should a challenge be brought before the ECtHR, the court would be tasked with assessing whether the Greek government's restrictions serve a legitimate aim and are proportionate to that aim.