Surrogacy, a practice that has gained prominence in various parts of the world, is at the center of an intense legal and social debate in Argentina. As the phenomenon of “surrogacy tourism” expands, allegations and investigations have emerged regarding cases and clinics dedicated to providing the medical and legal services necessary to implement this practice.
On Requests for Information
Despite the media attention generated by these cases, public agencies responsible for addressing this situation—except for a national prosecutor’s office—do not seem alarmed about the issue.
Recently, students from the Human Rights Clinic at the Universidad Austral submitted requests for information to various governmental entities seeking clarity regarding this practice and the allegations related to surrogacy in the country. The responses received from different ministries reveal an alarming situation: the Ministry of Health and the Secretary of Human Rights indicated that they have not received formal complaints about surrogacy contracts, highlighting a troubling lack of monitoring over practices that, for the most part, can be classified as exploitation and human trafficking.
The Ministry of Foreign Affairs, on the other hand, provided relevant information in its response, indicating that they had received communication from the Argentine consulate in Bonn, Germany, regarding a case of a minor born in Argentina. This case revealed that the mother had entered into a surrogacy contract through a business operation that involved the expatriation of the minor. This situation was followed by a criminal complaint from the ministry, highlighting, at least in this case, the state’s interest in protecting minors from the abuse of this practice. The ministry added that the situation was under investigation, although with limited details due to confidentiality of the proceedings.
The acknowledgment of a specific case marks an important point regarding how the state must more effectively address situations involving surrogacy, especially those that might involve abuse.
About the Case
This case, which has drawn media and judicial attention, originated in January 2024 when the Argentine consulate in Germany informed the Foreign Ministry about a girl born in Argentina. The girl had been handed over to a foreign woman who then presented the child in critical condition to a hospital in Germany.
The Federal Prosecutor in charge, Alejandra Mágano, stated that as a result of this case, “it became clear that it would be a business deal, developed nationally and internationally, specifically dedicated to carrying out surrogacy treatments.”
Under this scheme, “services” are offered for amounts around $50,000 to couples seeking children. Thanks to searches conducted on fertility clinics and legal and notary firms between 2018 and April of this year, there is evidence from 147 files corresponding to surrogacy cases. It was noted that at least 49 of them involved foreign individuals who were not residents of the country.
In some cases, it was verified that the intended parents had not made genetic contributions. Likewise, most did not have an emotional bond with the surrogate mother in a way that would allow an inference that the Assisted Human Reproductive Techniques (ART) medical procedures were performed directly, with a prior relationship between the surrogate and intended parents, and without the involvement of individuals who benefit financially from these practices, which would have suggested that these were altruistic surrogacies.
None of these 147 cases involved civil judges who intervened to authorize the procedure or establish parentage. Rather, notaries collected supposed contractual consent based on statements that could be established as entirely or partially false.
Argentinian Regulation on Surrogacy
The Civil and Commercial Code of the Nation establishes in Article 565 that in natural parentage, maternity is established with proof of birth and the identity of the born child. In the case where birth occurs due to assisted human reproduction techniques (ART), it is established that the born individuals are children of the mother who gave birth and of the man or woman who also provided their prior, informed, and free consent . . . duly registered in the Civil Registry, regardless of who contributed the gametes. (emphasis added).
This regulation was the result of exhaustive discussion in Congress, where there was debate over whether parentage in cases of children born through ART could be established solely by procreative intention and not by the fact of birth. However, it was established that the one who gives birth is the child’s mother, adding the possibility that the partner of the woman giving birth, solely through procreative will, could also become a father or mother.
Due to the acceptance of the criteria of procreative will, the City of Buenos Aires issued a decree authorizing the registration of births of children born through altruistic surrogacy under the following requirements:
- That they are minors born in the Autonomous City of Buenos Aires through the method of altruistic surrogacy;
- That the procreative intention of the progenitors has been expressed prior and freely, and was informed;
- That the gestational woman clearly and bona fide expressed no procreative intention; and
- That the registration must be made beforehand, with the information of the child recorded in the file.
This regulation, along with numerous rulings that point in the same direction, contradicts the spirit of the Civil Code provision, giving rise to a new form of motherhood that relies solely on the stated procreative will, provided the actual mother claims not to have it. Through this decree, children who are bought and obtained through surrogacy in Argentina are registered.
On its part, Article 145 bis of the Penal Code (PC) regulates the crime of human trafficking, as those investigated would have routinely operated “a criminal business dedicated to the recruitment of women, many of whom are vulnerable and in conditions of economic deprivation, with the aim of subjecting them to exploitation comparable to forced servitude”; a crime that is also foreseen in Article 140 of the PC and in section “a” of Article 2 of Law 26,842 on the Prevention and Punishment of Human Trafficking and Assistance to its Victims.
Additionally, the report noted that the buying and selling of human beings constitutes a constitutional crime as stated in Article 15, where the constituents expressly provided that “any contract for the buying and selling of persons is a crime for which those who enter into it, as well as the notary or official who authorizes it, shall be responsible.” Furthermore, the commission of crimes against public faith would also apply for making false statements in public instruments (Article 293 of the PC), which occurs through the supposed agreements between the surrogate mother and the intended parents as presented by notaries before the Civil Registry of the Autonomous City of Buenos Aires.
Conclusion
At the international level, agencies and experts in human rights have denounced the commercialization of surrogacy as a form of human trafficking. The United Nations Special Rapporteur on trafficking in persons, along with various international bodies and the European Parliament, have defined commercial surrogacy as a type of human trafficking. While data regarding the socioeconomic status of surrogates is lacking, it is generally understood that in most cases, these women are in vulnerable conditions.
To respect human dignity means to pursue a complete prohibition of surrogacy. The practice of surrogacy, even the altruistic or charitable kind, implies an abuse of human dignity, and leads to the exploitation and trafficking of human beings, reducing them to a modern form of slavery.
In conclusion, surrogacy in Argentina faces a crucial moment that demands a decisive approach from the authorities. Ignoring this reality would perpetuate a cycle of exploitation and vulnerability that affects the most disadvantaged sectors of our society.
Read the Spanish version of this article here.
