Argentina to Legalise Surrogate Motherhood

By Marcela Valente Reprint | | Print | |En español

BUENOS AIRES, Mar 8 2013 (IPS) - Argentina is set to become the first country in Latin America to legalise surrogate motherhood as an option for heterosexual and homosexual couples or single people who cannot conceive but want to have a child who is biologically their own.

“It’s been one of the hardest topics in family law,” Marisa Herrera, a lawyer who participated in a thorough reform of the civil code created in 1869, told IPS. Groups of experts worked on redrafting it under the direction of the Supreme Court, following a proposal by President Cristina Fernández.

The project was presented to Congress in early March, and if approved as expected it will make Argentina the first Latin American country to legalise this practice, also known as “rent-a-womb.”

Brazil and Mexico* have laws on surrogacy, but they lack the breadth of scope and the innovative nature of the Argentine bill, experts from those nations told IPS.

The reform bill puts forward a civil code that is much more open in terms of family law. It incorporates the already established right to marriage between persons of the same sex, as well as no-fault divorce, while replacing the concept of parental authority with that of parental responsibility.

But gestational surrogacy was the most complex issue for the experts, Herrera said, mainly because of the criticisms – “some extremely valuable” – from feminists and other groups that fear women who act as birth mothers will be “objectified,” or will be motivated by profit, especially in the case of poorer women.

There are a large number of ads on the internet posted by women from Latin America offering to act as surrogate mothers for a fee, as well as by couples looking for a healthy woman capable of carrying a baby to term in return for health care and economic support.

In Argentina surrogacy is practised, but it is unregulated, as in all other countries in the region. Some couples prefer to travel to countries where the practice is legal, and come back with their baby, but that implies heavy costs that not everyone can afford, resulting in discrimination, Herrera said.

The practice is legal in Australia, Greece, India, Israel, Russia, South Africa, some states in the United States and Canada, and is under consideration in Belgium, Bulgaria, Finland, Iceland and Ireland. In some countries where it is permitted within limits, like Brazil, flexibilisation of the law is being debated.

This information appears in an essay titled “Por qué sí a la regulación de la gestación por sustitución a pesar de todo” (Why gestational surrogacy should be regulated, in spite of everything), by Herrera and two other lawyers who drafted the reform bill, Eleonora Lamm and Aida Kemelmajer.

In it, the experts put forward the reasons for regulating the practice and essential precautions for making it safer.

“I don’t know if this method is ideal, but it exists,” Herrera said. “It is frequently used a lot abroad, and we cannot ignore it. It is better to have a law to regulate and control it, protecting the child above all, but also the surrogate mother and the intended parents who want to have their biological child this way.”

The bill stipulates that gestational surrogacy must be approved by a judge before the embryo is implanted. The judge will require medical and psychological health certificates for the birth mother and her “free, full and informed” consent.

A multidisciplinary team from the court will advise the surrogate mother about the risks and implications of the pregnancy. She will not be able to use her own eggs, and one or both of the intended parents must provide reproductive cells (eggs or sperm). This is to ensure there is no dispute over parentage.

In the view of the experts, “the intended parents must have demonstrated they are incapable of conceiving or carrying a pregnancy to term.”

They also say that in order to avoid becoming a form of “labour imposed by poverty and tolerated by the state,” the surrogate mother can only bear a child for others twice. She should also have at least one child of her own before entering into a surrogacy agreement “to ensure that she understands the seriousness of the commitment.”

The surrogacy agreement must be free of charge. Medical expenses, health care and food may be paid for but they do not alter the altruistic nature of the contract. And even if financial payments are involved, it is anticipated that the limit of two pregnancies will curtail the “business.”

Doctors will not be able to carry out embryo implantation without prior legal permission in every case, according to the bill.

In this way, legal safeguards are provided to all the parties. The child’s parentage is not changed at birth, because the intended parents are legally its parents from the moment the judge authorises the surrogacy, and they are responsible for the child from pregnancy on.

Brazil has no legislation on surrogate motherhood, but the Federal Medical Council has regulated it since 2010. It is allowed only when a couple cannot have a child of their own, and the surrogate mother must be a first- or second-degree relative (such as mother, sister or aunt).

The president of the Commission on Bioethics and Biorights of the Brazilian Bar Association, Bernardo Brasil, told IPS that the constitution forbids traffic in human organs, and “that includes the uterus.” So the regulations prohibit paying a fee to the substitute mother.

The Federal Medical Council allows the payment of medical expenses and the costs involved in the pregnancy, “but a contract cannot be entered into for financial gain. The person who lends her uterus cannot seek to cash in on the arrangement,” he said.

In his view, the Council’s resolution “is limited in nature because it only involves medical practice, but says nothing about the relations between the surrogate mother and the intended mother,” who is a relative, so that litigation about parentage may arise between them.

“There are profound ethical implications and there is still a great deal of resistance from religious groups in Congress. Brazil is experiencing a legal vacuum, because the Medical Council resolution is a provisional measure, but legal guidelines are lacking,” he said.

Mexico, too, lacks a national law on the question. Only the southern state of Tabasco has regulations for surrogate gestation since 1998, without addressing the issue of financial gain.

In 2010 the Mexico City government approved a surrogate gestation law restricted to married heterosexual couples, but it was vetoed. Another bill is currently under debate, although it would only apply in the capital.

Angélica García, the head of the non-governmental Mexican Foundation for Family Planning, told IPS that surrogacy should be “regulated in accordance with sexual and reproductive rights and freedom of choice; scientific information should be provided, the mental and physical health of the surrogate mother must be cared for, and there must be no coercion or blackmail.

“The financial aspects are not the most important. Without clear legislation, we would be left in doubt as to whether surrogacy should be profitable or not. It would be very difficult to decide whether or not a fee should be charged,” García said.

* With additional reporting from Fabíola Ortiz in Rio de Janeiro and Emilio Godoy in Mexico City.