Uruguay

Uruguay has stood out as one of the pioneering countries in South America in promoting public policies for gender equality and the promotion of women’s rights^[1] in recent decades. For example, this country decriminalized abortion up to the twelfth week through Law No. 18,987 on the Voluntary Interruption of Pregnancy^[2] in 2012. In spite of this, and as it happens in other countries of the region, surrogate motherhood is considered one more reproductive technique to fight infertility of some of its citizens instead of a condemnable social practice.

Legal framework

Following this logic we find that surrogacy in the case of Uruguay is prohibited according to Law No. 19,167 on Regulation of Assisted Human Reproduction Techniques^[3] enacted in 2014. This is detailed in Article 25 of Chapter IV of Surrogacy:

“Article 25

 (Nullity): Contracts for valuable or gratuitous consideration between a couple or woman who provide gametes or embryos, whether their own or those of third parties, for gestation in the uterus of another woman, obliging the latter to deliver the child to the other party or to a third party, shall be absolutely null and void”.

However, one specific situation is excepted:

“Only the situation of a woman whose uterus cannot gestate her pregnancy due to genetic or acquired diseases, who may agree with a relative of her second degree of consanguinity, or of her partner in her case, the implantation and gestation of her own embryo, shall be exempted from the above provisions”.

In Uruguay, surrogacy is allowed to heterosexual couples, and specifically, to infertile women who have a sister, mother, and/or sister-in-law who is willing to gestate an embryo in their place.

This attempt to frame surrogate motherhood in a purely familial, and therefore supposedly altruistic, framework is criticized by feminist activists. One of them is Lilián Abracinskas, director of the feminist organization Mujeres y Salud en Uruguay (MYSU). Abracinskas argues that it is precisely in the private and family sphere where many monetary conflicts and economic interests proliferate^[4] , and she also mentions that this law, like many others of that parliamentary process, is of poor quality and contains inconsistencies. One of the inconsistencies is that Law No. 19,167 on the Regulation of Assisted Human Reproduction Techniques did not consider other social advances such as the Equal Marriage Law in 2013.

Access

Thus, without any real debate within Uruguayan society, this practice was included in its legislation and in the institution that provides financing for highly complex procedures, the National Resources Fund (FNR).

The process that the commissioning woman must go through is as follows: she must be over 18 years old and under 40 years old and unable to gestate due to congenital or acquired diseases. The surrogate mother and the commissioning heterosexual couple or the commissioning mother must undergo clinical, paraclinical and psychological evaluations that will be sent to the Honorary Commission of Assisted Reproduction. This commission was created along with the law and is under the tutelage of the Ministry of Public Health and its main role is to ensure that the requirements demanded by the law are guaranteed. In Uruguay there are three clinics enabled since 2015 to perform surrogate motherhood: the Centro de Esterilidad Montevideo, the Centro de Reproducción Humana del Interior and the Suiza Americana clinic. As of 2020^[5] , none of these three clinics had carried out a surrogacy case.

Political angle

Jorge Peña, deputy belonging to the Partido de la Gente, presented a bill in October 2021 to eliminate the consanguinity requirement^[6] arguing that it was very limiting. This proposal was rejected in parliament although it was accepted to raise the consanguinity requirement to the fourth degree, that is, including even cousins, nieces or aunts. Likewise, another politician named Felipe Schiapani proposed to modify the law so that homosexual couples could have access to it, in order to repair the fact that the law ‘generates a situation of enormous injustice for male couples’. However, that proposal was not accepted either.

It is important to mention that there was a large mobilization of the Intersocial Feminista, which brings together more than 30 local feminist organizations, to prevent the advance of other forms of surrogacy^[7] . These organizations are right to take action to prevent an advance towards more commercial forms of surrogacy. Especially since the current president of Uruguay, Luis Lacalle Pou, maintained in 2018 that he does not agree with the current legislation. Moreover, he argued that “it should be possible to rent the womb for a woman to become a mother”^[8] .

 

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