ARGENTINE

Argentina has become a reference point in the abortion debate thanks to its legislation and social advancements. In 2020, the country legalized abortion up to the 14th week of pregnancy, a groundbreaking process in Latin America. This success is the result of a movement driven by feminist activists, human rights organizations, and progressive groups. This advancement represents a major step forward for women’s rights and bodily autonomy, inspiring other nations around the world.

 

Despite its eloquent example of recognizing abortion as a form of reproductive exploitation of women, forcing them to carry and give birth to a child due to patriarchal convenience and oppression, the same scrutiny is still necessary in Argentina regarding surrogacy.

This is because in Argentina, as in other countries in Latin America and the world, surrogacy is still considered a medical practice for infertility rather than a social one. Existing bills focus more on mitigating the harmful effects of surrogacy than on questioning the practice itself.

 

LEGAL ASPECTS

 

In Argentina, surrogacy, commonly known as “alquiler de vientre” (renting a womb), is not regulated. This means that there are aspects that are not explicitly prohibited and gray areas that allow this practice due to the lack of clear regulation. Therefore, there are currently different modalities to carry out surrogacy in the country, often referred to as “gestación solidaria” (solidary gestation).

Since 2015, surrogacy has been accepted in the country as one of the valid assisted reproductive techniques (ART), following the reform of the Civil and Commercial Code (Law 26.862, Regulatory Decree 956/2013, Draft Reform of the Civil Code regarding ART, and a future Special Law on ART) which incorporates it as a third way to establish filiation. The two other existing ways in the country are biological filiation and adoption. The Assisted Reproduction Law No. 26.862 of Argentina, enacted in 2013, addresses surrogacy in a restrictive manner. This law does not explicitly authorize the practice of commercial surrogacy. According to Argentine legislation, we observe: a) the prohibition of commercial surrogacy; surrogacy must be altruistic; c) in general, filiation is recognized based on biological ties, but there may also be additional legal procedures to ensure the rights of intended parents and the child born through surrogacy, meaning by individual request to the court.

Currently, there are two pending bills aiming to regulate surrogacy in Argentina. One is proposed by the national deputy of Frente de Todos for Córdoba, Gabriela Estévez, while the other is from the senator of UCR for Mendoza, Julio Cobos. Both establish a series of common criteria for the practice, such as the obligation to provide medical insurance for the surrogate mother, the right for the child born through this method to access legal information about their conception, and the sanctioning of third parties seeking to profit from surrogacy. Additionally, both projects insist on the need for applicants to have at least five years of residence in the country to avoid the arrival of foreigners seeking surrogacy.

It is imagined as a precaution not to make Argentina a global hub for reproductive exploitation, similar to Colombia for example. Despite the alleged protection of nationals, the residency requirement in Argentina and thus the attempt to restrict the practice at the national level, much like in Portugal, Argentine legislation does not take into account its responsibility towards women from other countries with less restrictive surrogacy laws, such as the United States and Ukraine. This results in the paradox of recognizing the exploitative nature of the practice through concern for protecting its citizens, without preventing Argentinians from resorting to the reproductive capacity of foreign women and returning to Argentina with recognized filiation. An example of this paradox is the recent case of Argentinians in their “heroic” search for allegedly their own children in war-torn Ukraine.

 

In summary, the news, in its terms, reports that (1):

Five Argentine families, whose newborn babies were conceived through surrogacy, were safely rescued from Ukraine to Poland after a complex operation that lasted nearly 23 hours. Argentine Foreign Minister Santiago Cafiero announced the rescue via Twitter, highlighting the coordination of embassies in Ukraine and Poland. The families, housed at the Argentine embassy residence in Ukraine, departed for Poland after intense diplomatic efforts. 

The war-torn situation in Ukraine sheds light on the reality of surrogacy, and news like this, which focus more on narrating a heroic story without ever questioning the conditions of surrogate mothers, highlight the priority given to a beautiful story rather than asking: why would a woman from a country at war agree to undergo surrogacy? Who is this woman? What happened to her after giving birth? Were these families properly compensated? Is she still alive?

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