Writing America, (EFE).- Despite the ambiguity and legal uncertainty surrounding the so-called “surrogate surrogacy”, most countries in the Americas are beginning to consider the regulation of surrogacy, so that this practice it can be done as an altruistic action, but not as a commercial transaction.
According to a survey carried out by EFE in thirteen countries on the continent, the situation is very heterogeneous, which gives rise to subterfuge, legal contradictions and practices that are not regulated, but are not expressly vetoed either.
There are countries that neither allow nor prohibit it (Argentina, Bolivia and Costa Rica); others that authorize it, but with certain limitations (Brazil, Mexico, Cuba and Puerto Rico); others that disavow it (Uruguay); others that submit it to a mixed regulation, depending on the place (USA), and others that move in a legal limbo (Colombia, Peru, Ecuador and the Dominican Republic).
In the United States, there are states that allow it, others that prohibit it, and others that consider surrogacy agreements between individuals null and void.
Florida is one of more than 40 states where it is legal. There, the Spanish presenter Ana Obregón, 68, has become a mother thanks to this type of pregnancy.
The case of Ana Obregon
The case of Ana Obregón has opened a political and social debate in Spain that has even led to the fact that the Popular Party, the main opposition formation, is reconsidering its postulates regarding surrogacy.
In other parts of the US, surrogacy contracts are considered “void” and are therefore not enforceable. Meanwhile, in New York, paid surrogacy has been allowed since last Monday, after a law that grants it a legal framework came into force.
On the other hand, in Argentina, surrogacy is neither allowed nor prohibited, which is a legal vacuum.
“No one can put the body of another in commerce”, that is, agencies or intermediaries are prohibited, and “the only one that can self-determine” is the manager herself, explains to EFE the lawyer specialized in assisted fertility Florencia Daud. That is why we speak of “donation” and it is inferred that it is “altruistic
Along the same lines, in Bolivia surrogacy is not allowed, but it is not prohibited either. However, surrogate bellies are offered on social media for rates as high as $10,000. As the law establishes that the birth registry must include the name of the biological mother, this requirement invalidates any eventual contract.
With limitations in Brazil
Brazil is one of the countries where there are surrogates, but with certain limitations, since surrogacy has been in operation since the 1970s as long as there is no payment involved. The so-called “solidarity belly” must be from a family member who, in addition, has already had offspring. On the other hand, “bellies for rent” are expressly prohibited by the Constitution and the Transplant Law.
In Mexico, the National Supreme Court of Justice endorsed surrogacy in June 2021, both free and paid, and even guaranteed access to same-sex and foreign couples. But the practice is only legalized in two of the 32 entities in the country and, furthermore, there is still a lack of regulations governing healthcare provision.
Meanwhile, in Cuba, the Family Code approved last September contemplates the so-called “solidarity gestation”, expressly excluding the possibility of economic compensation for the pregnant woman. Given its recent approval, the legal development of this standard has not yet taken place.
The Civil Code of Puerto Rico also recognizes surrogate motherhood, establishing that “the human body is inviolable and cannot be the object of private contracting,” except in a series of cases, including surrogate motherhood.
In Colombia, in a legal limbo
Colombia is at the head of the countries that are in a legal limbo. In that country, the surrogate business is included in a bill that has just been sent to Congress. The initiative seeks to limit the so-called “surrogacy”, prohibiting it for commercial purposes, and leaving it simply for “altruistic purposes”.
In Peru, surrogacy is neither allowed nor expressly prohibited, although for years heterosexual couples who have problems having children have opted for this route bypassing the law.
Surrogacy in Ecuador is not regulated at the moment either. There is a proposal within the draft Organic Health Code, which Parliament has taken up again after it was vetoed in its entirety during the presidency of Lenín Moreno (2017-2021). In any case, the text prohibits economic compensation.
Similarly, in the Dominican Republic there is a legal vacuum on surrogate motherhood, but there are fertility centers that carry out and promote this practice.
The most forceful country in terms of legislation is Uruguay, where contracts for consideration or free of charge between a couple or woman who provide gametes or embryos, be they their own or from third parties, for the gestation in the uterus of another woman are absolutely null, forcing to this to deliver the child to the other party or to a third party.
