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Legal Framework in Colombia:
There are no regulations specific to surrogacy in Colombia. In the last 25 years, 16 bills have been rejected. While a 2009 Constitutional Court ruling authorized surrogacy “without regulating it,” it did not provide a framework for “how to establish the contract between the different parties, parentage, medical and financial obligations towards the surrogate mother.”[1]The ruling was based on a legal precedent. This decision, which is based on a legal precedent, expresses the fact that there is no explicit prohibition in the Colombian legal system against the execution of this type of agreement. However, with regard to assisted reproductive techniques, which include surrogacy, legal doctrine has established that they are legally legitimized under Article 42-6[2] of the Constitution, which states that “children born in or out of wedlock, adopted or procreated naturally or with scientific assistance, have equal rights and duties”[3].
On February 24, 2023,[4] the government of Gustavo Petro (left) presented a bill to the deputies. The text stipulates that surrogate mothers must be between 25 and 34 years old and already mothers. In addition, “heterosexual couples must have exhausted all medical means of procreation”. This would then regulate surrogacy on the individuals mobilized, namely the conditions for being a surrogate mother and the conditions for benefiting from it.
The Colombian Constitution does not allow discrimination, so all single people, heterosexual or same-sex couples can participate in the surrogacy process, as long as there is a genetic link with the baby. Equal rights are extended to foreigners in Article 100[5] of the Constitution, which grants foreigners the same rights as citizens, including for international surrogacy. As far as parentage is concerned, the surrogate mother must not be genetically related to the child. However, the legislation does not regulate the payment of surrogate mothers or the drawing up of contracts.
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What happens in practice?
In Colombia, there are about 35 fertility clinics, “more than 60% of which have ventured into the practice”[6] of surrogacy and are trying to open up the practice more and more. The legal vacuum surrounding the practice leaves the field wide open for agencies to dictate surrogate recruitment criteria, contract terms, and payments. While surrogacy is practiced in Colombia, surrogates are subject to confidentiality agreements that prevent them from speaking about the process. As a result, it is very difficult to obtain cases of surrogates who are willing to talk about their experiences or simply testify.
This newspaper[7] (La presse) managed to obtain a statement from a surrogate mother under a pseudonym. She explains that she is a nurse and a former surrogate mother, so she knows the ins and outs of surrogacy in Colombia, where hundreds of women “offer” themselves as surrogates. Most surrogates are recruited through social networks – a new recruitment and advertising platform that offers a wide range of offers and requests. Offers on social networks such as Facebook refer to numerous advertisements for “womb rentals” from private individuals to private individuals at extremely low prices.
The cases of surrogate mothers in Colombia are very different, since the offers and requests on social networks vary greatly, and the contracts signed by the surrogates are mainly for the clients, and most of them do not benefit from any legal follow-up to guarantee their rights and security. The researcher Angelica Bernal, a graduate of the Javeriana University, explains – after conducting a survey – that she “spoke with surrogates who were paid 10 million pesos, or about $2,000, for the whole process. One of them was not paid, and there are other women who have gone through the process up to six times. [8] The lack of regulation and a specific legal framework for surrogates then reduces their pregnancy to a cost of only $2,000 (in cases where the women are paid), including all the known risks of surrogacy: pre-eclampsia, gestational diabetes, loss of the uterus, loss of potential fertility with recourse to cesarean sections requested by the commissioning parents or imposed by the agencies, death… But also the whole process, namely: recruitment, signing the contract, IVF (in vitro fertilization, repeated in case of failure), psychological support to dissociate herself from her pregnancy, medical monitoring of the pregnancy, delivery, handing over the child to the client, renouncing her filiation with the child she has carried, the postpartum period and all the risks associated with pregnancy.
When women engage in surrogacy up to six times, it’s because they really need money at the expense of their own health and the needs of others: “These are low-income women, many of whom become surrogates to pay off debts, pay for their studies, or provide for their children”[9]. And when they are sometimes not even paid, their rights as women are completely disregarded.
The lack of regulation or formal prohibition of surrogacy contributes to the development of illegal trafficking. While the “Regulations on Perinatal and Maternal Care”[10] normally require the surrogate to be registered at the time of delivery, cases of bribery of medical personnel are now developing. Surrogate mothers and agencies go so far as to pay a notary or one of the delivering doctors to “register the (commissioning parents) as parents on the birth certificate”[11]. This makes it possible to recognize the parent-child relationship directly, bypassing adoption procedures and removing the surrogate from the process.
Subject to reproductive tourism, many Spanish clients in particular (since the practice is illegal in their country) look for surrogates in Colombia and sometimes bring them back to the client’s country of origin for the birth, in order to facilitate filiation. The few legal measures that exist regarding surrogacy are not always respected, and an increasing number of illegal cases have been reported. Although the average price of a child born through surrogacy is $4,000[12], this amount does not always reflect the real cost of the procedure. Colombia has become a very attractive country for commissioning parents and a profitable destination due to the relatively low costs compared to other countries where surrogacy is legal, such as the United States. In addition to the resulting trafficking of women and children, Western countries’ demand for Colombia as a “low-cost” surrogacy destination has created a supply of surrogates in the country, with many Venezuelan women fleeing their homeland for Colombia.
Agencies offering surrogacy programs in Colombia offer services ranging from $50,000 to $105,000[13]. As mentioned above, surrogates receive only a few thousand dollars of the total amount paid by their clients. This commercial system thus offers agencies, lawyers, laboratories, doctors, advertisers, and others a more than lucrative practice for the sacrifice of a woman.
[1] https://www.genethique.org/colombie-les-ventres-a-louer-se-multiplient/#:~:text=En%202009%20une%20d%C3%A9cision%20de,financi%C3%A8res%20envers%20la%20m%C3%A8re%20porteuse%20%C2%BB.
[2] https://www.constituteproject.org/constitution/Colombia_2015
[3] https://surrogacycolombia.com/surrogacy-law/
[4] https://www.la-croix.com/Monde/En-Colombie-GPA-hors-controle-2023-03-06-1201257944
[5] https://www.conseil-constitutionnel.fr/publications/titre-vii/le-traitement-jurisprudentiel-du-principe-d-egalite-au-sein-des-cours-hispanophones#:~:text=%3A%20Colombie%2C%20art.,exercice%20de%20certains%20droits%20civils.
[6] https://www.asuntoslegales.com.co/actualidad/gestacion-subrogada-en-colombia-cual-es-la-situacion-legal-actualmente-en-el-pais-3565525
[7] https://www.lapresse.ca/international/amerique-latine/2023-03-27/la-colombie-et-les-meres-porteuses/un-debat-politique-sans-fin.php#:~:text=En%20Colombie%2C%20des%20femmes%20sont,colombien%20de%20r%C3%A9glementer%20cette%20pratique.
[8] https://www.lapresse.ca/international/amerique-latine/2023-03-27/la-colombie-et-les-meres-porteuses/un-debat-politique-sans-fin.php#:~:text=En%20Colombie%2C%20des%20femmes%20sont,colombien%20de%20r%C3%A9glementer%20cette%20pratique.
[9] https://www.lapresse.ca/international/amerique-latine/2023-03-27/la-colombie-et-les-meres-porteuses/un-debat-politique-sans-fin.php#:~:text=En%20Colombie%2C%20des%20femmes%20sont,colombien%20de%20r%C3%A9glementer%20cette%20pratique.
[10] https://www.bbc.com/afrique/monde-64399279
[11] https://english.elpais.com/international/2023-01-04/colombias-surrogacy-market-buying-a-baby-for-4000.html
[12] https://elpais.com/america-colombia/2023-01-03/el-mercado-de-los-vientres-de-alquiler-en-colombia-un-bebe-a-4000-dolares.html
[13] https://www.nordicsurrogacy.se/fr/gestation-pour-autrui-gpa-en-colombie/