As a corollary to the presentation of surrogacy in the global marketplace, the offer of the practice as a medical solution or treatment for infertility finds yet another example of this misinterpretation in Brazil. Indeed, although the commercial practice is not authorized, the ultimate reference for its regulation does not come from the political-legislative sphere. Since 1992, the date of the first Resolution, surrogacy has been regulated by the Federal Council of Medicine (CFM).
The latest version of the Resolution was published in 2022, updating the possibility of requesting “exceptional authorization” from the Council when the family relationship, hitherto considered the rule, cannot be respected for whatever reason. Despite the retention of the condition that surrogacy “may not be for profit or commercial purposes”, what can be observed in relation to previous resolutions is clear progress in facilitating access to the procedure, from the extension of the degree of kinship to its relativization.
The CFM introduces Resolution 2.230/22 with a series of considerations, including “human infertility as a health problem”, and a mention of the recognition of same-sex unions.
It is clear from this article that surrogate motherhood is instrumentally presented as a medical practice resulting from a scientific breakthrough in order to mask the fact that it is a social and misogynistic practice, as well as a distortion in favor of the promotion of equality and the recognition of same-sex families, which, while being a just cause, cannot use the exploitation of women’s capacity to achieve it.
In summary, Brazil has no specific legislation at state or federal level that expressly provides for surrogacy, authorizing or prohibiting it. However, as we will see below, through loopholes and possible deductions from other legal texts, while the commercial practice of surrogacy is not permitted, the so-called “altruistic” or supportive form is regulated only by the aforementioned medical body.
Before analyzing CFM resolution 2.320/2022, let’s look at the legal provisions that suggest a ban on commercial surrogacy in Brazil. At least for the surrogate mother.
In general, when one looks for legislation on surrogacy in Brazil, one finds mention of the Law on Organ Transplantation. This law states that “the purchase or sale of tissues, organs or parts of the human body is punishable by three to eight years’ imprisonment and a fine of 200 to 360 days”.
At the constitutional level, Article 1 of the Federal Constitution mentions the dignity of the human person as one of the foundations of the Federative Republic of Brazil. In addition, Article 199 § 4 of the Federal Constitution limits private initiative in the field of health, expressly forbidding any pecuniary consideration for the commercialization of the body.
Article 199. Health assistance is free to private initiative.
- 4º The law lays down the conditions and requirements that facilitate the removal of human organs, tissues and substances for transplantation, research and treatment, as well as the collection, processing and transfusion of blood and its derivatives, all commercialization being prohibited. [Our translation]
Also in relation to the Federal Constitution, the Brazilian Civil Code, in article 104, point II, stipulates that for a legal agreement to be recognized as valid, the object of the transaction must be “licit, possible, determined or determinable”. At the same time, the Federal Constitution provides for the inviolability of the right to life; in other words, life is considered impossible to include as the object of an agreement.
On “solidarity” surrogacy. Even if no remuneration is provided for, it is imperative that there be a contract between the pregnant woman and the persons to whom she undertakes to hand over the child. This contract is a requirement of the Federal Medical Council, both for the performance of the medical act and for the registration of the child as the child of the persons to whom it has been handed over under this same contract, i.e. filiation.
Although these contracts conceal pregnancy as their object, pregnancy in itself does not realize them. The aim of the commissioning parents is to produce and give birth to a child. Even if the pregnancy is put forward, the object of the contract is the child, and therefore a human being.
The imposition of gratuity by the service to the surrogate mother is the element used to qualify surrogacy in Brazil as altruistic/solidary or ethically acceptable, but this same gratuitous service is not imposed on doctors, clinics, lawyers, notaries, psychologists and hospitals. In other words, non-commercial surrogacy doesn’t exist. What does exist is the imposition of free surrogacy as a subterfuge for presenting as ethical a practice that turns women’s bodies into commodities and children into objects to satisfy the desires and interests of third parties.
Conditions for non-commercial surrogacy in Brazil
Analysis of Resolution no. 2.230/2022 of the Federal Council of Medicine (CMF):
It is important to remember that the rules of the FMC, as found in the title of the latest Resolution on surrogacy, are only ethical rules – or supposed to be. These rules do not have the force of law for society in general, but apply only to professionals in the sector. They are designed to protect doctors and clinics from being penalized for their contribution to the practice of surrogate motherhood.
Entrusting responsibility for regulating surrogacy to a medical organization (which has been doing so for 13 years) reveals the way the practice is perceived in Brazil: as a medical practice, a solution to infertility or the inability of couples or single individuals to generate life on their own.
This approach is adopted by the CFM itself in the text of the Resolution on surrogacy when it treats people seeking to obtain a child as “patients”. The following paragraph is taken from article 3, which lists the documents required to carry out the procedure:
- a) a declaration of free and informed consent signed by the patients and the temporary donor of the uterus, covering the biopsychosocial aspects and risks associated with the pregnancy-puerperium cycle, as well as the legal aspects of parenthood ;
The use of the term “temporary cedent of the uterus” reflects a whole vocabulary used by the surrogacy market, which seeks at all costs to eclipse the existence of the woman undergoing the procedure and eradicate any possibility of her being recognized as the mother of the child she has conceived and brought into the world.
As far as “patients” are concerned, the question is: when is treatment carried out on the bodies of people who are effectively sterile or unable to bear a child? The answer is: never. In fact, surrogacy is a social practice (unacceptable in every respect) that uses medical techniques. It doesn’t treat couples’ infertility; it recruits a woman to offer her body in order to fulfill a third party’s parental project.
In terms of treatment, this woman undergoes a preliminary selection process (the CFM requires that she already be the mother of a living child) and undergoes tests to certify her gestational capacity. To ensure that her uterus is ready to receive an embryo, high doses of hormones are manipulated. The decision is then taken to insert one or more embryos to increase the procedure’s chances of success (success rates are generally low); before the embryo is implanted, antibiotics may be prescribed. When several embryos develop, it is decided how many will be kept and, for those that are rejected, salt water is injected into their hearts through a catheter, leaving the embryo’s body in the mother’s uterus for months until it is expelled during childbirth. During this process, the surrogate mother is often subjected to unnecessary medical examinations to inform the future parents of the status of her pregnancy.
According to resolution 2.230/2022, the surrogate mother, referred to by the Council as the “temporary assignor of the uterus”, must:
- a) have at least one living child; b) belong to the family of one of the partners by blood up to the fourth degree (first degree: parents and children; second degree: grandparents and siblings; third degree: uncles and nephews; fourth degree: cousins; OR c) if point b) cannot be fulfilled, authorization must be requested from the Regional Medical Council (RMC).
The condition of kinship combined with the unilateral gratuity of the surrogate mother is often used to sanitize the degrading nature of surrogacy. It simulates the cancellation of commercialization and promotes the idea of altruism. What’s more, this structure is radically patriarchal, since it reproduces the idea that women must be at the service of their family/lineage. Although the patriarchal idea of perpetuating the lineage.
Resolution 2.230/2022 also lists the documents that must be included in the “medical file” of the “patient” (the candidate’s unconditional file to be treated). These documents include the following:
- a) a declaration of free and informed consent signed by the patient(s) and the temporary transferor of the uterus, covering the biopsychosocial aspects and risks associated with the pregnancy-puerperium cycle, as well as the legal aspects of parenthood;
- c) a commitment between the patient(s) and the temporary transferor of the uterus who will receive the embryo in her uterus, clearly establishing the question of the child’s filiation;
- e) a commitment by the patient(s) to register the child as a child, with such documentation to be provided during pregnancy;
These provisions are the consequence of the omission of Brazilian surrogacy legislation, insofar as a medical organization is the mediator empowered to expressly allow filiation in favor of the commissioning parents of the pregnancy. In addition, as in the case of the recognized commercial modality, emphasis is placed on the “free consent” of the future surrogate mother, in order to make her as responsible as possible for possible problems and damage to her health, or the regret of having to give the child away.
- f) written consent from the spouse or partner, if the person temporarily transferring the uterus is married or in a stable relationship.
We must pay close attention to this provision if we are not to reduce our analysis to the crudeness of its existence and its deliberate retention by the CFM in 2022. Apart from the misogyny that characterizes it, the question is not whether or not the spouse consents to this practice, which gives him or her pimping powers over his or her partner. The only way to prevent the exploitation of women through surrogacy is to ban the practice in all its forms.
- b) a medical report attesting to the adequacy of the physical and psychological health of all persons concerned;
- d) a commitment by the patient(s) contracting public or private assisted reproduction services to medical treatment and monitoring, including by multidisciplinary teams if necessary, of the woman temporarily surrendering her uterus, until puerperium ;
Both provisions highlight the presence of various agents in the surrogacy process, as well as the predominant – but unacknowledged – role of women in this process. The existence of so many agents allows us to realize just how much surrogacy is, in fact, a social practice.
On the delegation of degradation to foreign women
The promotion of “altruistic” surrogacy on national territory does not prevent nationals from financing the exploitation and degradation of other women in foreign territories that authorize the commercial practice (USA, Colombia, Ukraine).
As observed in Portugal and Greece, the (albeit tacit) ban on commercial surrogacy has led nationals to seek out foreign women to carry out the procedures.
Similarly, Brazil does not seek to prevent Brazilians from using the legality of countries where commercial surrogacy is permitted and returning to Brazil with babies and the recognition of their belonging, filiation.
The example of Brazil clearly shows how far the absence of regulation by specific laws can go. It represents a decade of omission on the part of the legal and legislative powers, which have delegated the practice into the hands of the country’s highest medical authority.
Although the practice is not extremely popular or widespread (certainly because of the costs, which also testifies to the falsity of the idea of non-commercialization), there is a lack of politicization and public debate to understand surrogacy as a social practice. There is widespread, uncritical acceptance, due to a lack of control and protection on the part of competent spheres and civil society. This situation is consistent with that prevailing in many other countries around the world.
Surrogate motherhood is a social practice based on violence against women. Even if violence is not the aim of the practice, it is known and recognized when, in the contracts or “terms of free consent” themselves, the woman takes responsibility for what happens to her. This means psychological changes, discomfort, pain, emotional suffering, the risks inherent in pregnancy, and so on.
As a social practice, surrogacy is based on inequalities between rich and poor, between women and men, between rich and poor countries. This makes the practice a reproducer of these inequalities, and constitutes the sale of children and, above all, the trafficking of women and children.
The interpretation of the issue as medical or progressive in favor of homosexual couples is misleading and revealed when interrogated through a feminist prism and in defense of the human rights of women and children.
The only political courage we have today is to abolish surrogacy.