Surrogacy in Argentina: why it should be regulated

Ever since the same-sex marriage law was effected in Argentina, the process of gestational surrogacy has been the subject of some wide-ranging discussions. However, not only does it benefit LGBT communities, but also anyone whose medical condition prevents them from carrying on pregnancies in a more traditional way. Doctor Nicole Bromfield defines gestational surrogacy as a process achieved through in vitro fertilization, where “the surrogate is not the genetic mother of the child she carries” (Bromfield, 2016). Unless a pathological condition prevents them from doing so, the commissioning parents are the ones who should be biologically related to the child. Unfortunately, even though the surrogate does not hold any genetic ties with the embryo, due to the outdated state of this arrangement, she is still catalogued as the birthing mother. Article 562 of the Argentine Civil Code establishes that the legal mother of the child is the person who gives birth, which disregards any agreement the surrogate may have with the contracting parents (Ientile, 2020). For that reason, this paper aims to show why Argentina needs to amend the law in order to regulate surrogacy and grant both intended parents legitimate rights over their child.

In spite of the recognition the Argentinian law has granted the LGBT communities, much remains to be done to keep abreast with the growth society and science have made. In vitro fertilization is one of those medical advances that have empowered them with the opportunity of creating a family that suits them best. It has also yielded benefits to those barren couples who have striven to conceive children without much success. Regrettably, the Argentinian law has yet to adapt to the rapidly-evolving circumstances in which we live. Among the adjustments that are due is the need for the State to guarantee the availability of Assisted Reproductive Techniques (ARTs)—such as surrogacy—recognising that starting a family is a fundamental human right.

As it happens, the creation of a law that regulates and gives specific guidelines to the process of surrogacy is of great significance for everyone involved. The legal vacuum produced by the lack of a governmental decree—encompassing the entire country—has a direct bearing on the parent who has no blood-relation with the child. Despite the fact that the fertilization of the embryo does not require the gestational surrogate’s egg, the Argentine Civil Code considers the surrogate the legal mother of the child (Blardone, 2020). For that reason, the parent who has no consanguinity with the child is forced to adopt in order to have statutory authority over them. This is especially true for those homosexual couples who are obliged to find a female donor. Heedless of their right to get married, their possibilities of creating a bigger family are hindered by the burden the process entails. Such was the case of Leonardo Polti (47) and Ignacio Santalla (39). As a gay couple who opted for surrogacy, only Santalla was given to chance to be a donor. Polti, on the other hand, needed to do the necessary paperwork so as to adopt his own son. They took the case to court and received a favourable verdict to issue a birth certificate where both Polti and Santalla would appear as legal parents. Consequently, prosecutor Raquel Mercante took the case to the court of appeal alleging that ‘the mother can only be the one who gives birth’. It has been over a year since the case was accepted by the Supreme Court, but no advances have yet been made (Rossi, 2020).

For those parents who act as donors for the in vitro fertilization, and others who have the means to let the child be born in the City of Buenos Aires, the legal nuisances are reduced. The former is vital for those people who consider it essential to have a genetic link to their child. The latter allows both intended parents to be accepted by the State. Were this to pass as a law, it would not only benefit a reduced and select part of society, but also other Argentinian couples who have been hoping to be parents one day.

Opposing views state that surrogacy exploits disadvantaged women, forcing them to carry on a pregnancy through economic coercion. Thus, paid surrogacy has become illicit in some Asian and European nations (Caron, 2020). For deprived countries such as India and Cambodia, surrogacy—in its traditional and gestational forms—used to be a source of income for women who needed it most. Since it has been affirmed that surrogacy agencies have kept those women underpaid, while retaining large profits, the practice has become publicly condemned. It is in fact a highly lucrative business. In countries such as the USA, the cost of the procedure is between 120 and 200 thousand dollars (Blardone, 2020). The gestational carrier only sees a percentage of that price due to the extensive apparatus of people that sustain the process. Even when the profit the surrogate makes is rather low, the choice of whether she agrees to get involved in the arrangement or not should always remain with her. Even financially and socially vulnerable women ought to have the possibility of deciding whether they want to become surrogate mothers one day. It is a choice over their bodies and, in many circumstances, a source of income that can hardly be earned through other means. Other than that, the agency is responsible for determining whether the volunteer is physically, mentally and emotionally capable of carrying on the pregnancy of a child that will not be her own.

As was seen throughout this paper, there is an increasing demand for a regularisation of gestational surrogacy not only in Buenos Aires, but in the other provinces as well. Owing to the fact that both society and medicine have transformed and improved since Assisted Reproductive Techniques were first implemented, there is a pressing need for governmental laws to meet the requirements their people make. Among those individuals, one can find members of the LGBT community and couples who have toiled with medical conditions that prevent them from conceiving their own child. Nonetheless, those challenges should not thwart them from creating the families they have dreamed of. Since medicine has already granted them the means to overcome those difficulties, the State should also take a step towards overseeing the proper fulfilment of those procedures, while also guaranteeing that every person who opts for surrogacy is given a legitimate right over their non-biological children.

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References

Blardone, S. (2020, June 26). Subrogación de vientre: ¿cómo es y cuánto cuesta en la Argentina? Retrieved October 05, 2020, from https://www.infobae.com/tendencias/2020/06/26/subrogacion-de-vientre-como-es-y-cuanto-sale-en-la-argentina/

Bromfield, N. (2016). "Surrogacy has been one of the most rewarding experiences in my life": a Content Analysis of Blogs by U.S. Commercial Gestational Surrogates. International Journal of Feminist Approaches to Bioethics, 9(1), 192-217. doi:10.2307/90011864

Caron, C. (2020, April 18). Surrogacy Is Complicated. Just Ask New York. Retrieved October 05, 2020, from https://www.nytimes.com/2020/04/18/parenting/pregnancy/surrogacy-laws-new-york.html

Ientile, V. (2020, June 08). Gestación al servicio de otro o sobre cómo el Poder Judicial persiste en negar los derechos humanos de las gestantes. Retrieved October 05, 2020, from http://www.saij.gob.ar/DACF200116

Rossi, P. (2020, August 05). Subrogación en la Argentina. Las familias construidas sobre un vacío legal. Retrieved October 06, 2020, from https://www.lanacion.com.ar/sociedad/subrogacion-argentina-la-historia-familias-construidas-vacio-nid2409639