A review of surrogate motherhood regulation in south American countries: pointing to a need for an international legal framework

Abstract

BackgroundAdvances in science and technology coupled with globalization are changing access to and utilization of reproductive health services. This includes the transnational phenomenon of families who use surrogate mothers to reproduce, with forms of altruistic and commercial surrogacy becoming more commonplace. Simultaneously, changes in law, regulation, and policy are necessary to protect surrogates, intended parents, and resulting children. These developments have been slow to adapt to challenges inherent to surrogacy arrangements, most specifically in low-and middle-income countries, including in South American countries.MethodsWe conducted an interdisciplinary non-systematic literature review and legal analysis of existing and pending policy, laws, and regulations related to commercial surrogacy arrangements in Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela. The review focused on articles that discussed topics of domestic and international law, policy, regulation, and governance related to commercial surrogacy. We queried PubMed, JSTOR, and Google Scholar for Spanish and English-language articles limited to those published between 2000 and 2016.ResultsOur literature and legal review found a wide variance in how different countries address the issue, including two (Brazil and Uruguay) that have issued guidance attempting to clarify the legality of commercial surrogacy, others who have introduced surrogacy-specific legislation, and a final group with no specific legal mechanisms in place. Our extracted legal case studies also indicate that courts have a hard time interpreting existing law and its applicability to surrogacy. The influence of Catholicism also played a role in the adoption of surrogacy and other advanced reproductive technology (ART)-related legislation.ConclusionsChanges in global infertility rates, the emergence of new family structures, and advancement of ART are factors that will influence future development of legal frameworks addressing surrogacy in South America. Despite a growing transnational market for commercial surrogacy in many of the countries examined, the current patchwork of policy does little to clarify what forms of surrogacy are legally permissible, nor do they adequately protect surrogates, intended parents, or the children themselves. This points to an urgent need for regional legal and policy harmonization specifically designed to align with public health and human rights principles.Electronic supplementary materialThe online version of this article (10.1186/s12884-019-2182-1) contains supplementary material, which is available to authorized users.

Features of a Booming Reproductive Practice: The Medical Process, the Market, the Antecedents, and the Risks

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Right to be a Surrogate: Biological, Constitutional and Economic Perspectives

“…The Surrogacy (Regulation) Bill, 2019, responds rather negatively to the plethora of transaction cost (Verma, 2019) issues that arise in this economic activity. Concerning the regulation of contracts, partial involvement of the state may lead to market distortion and arbitrariness of contractual obligations (Torres et al, 2019). Further, contractual decisions are defined by bounded rationality.…”

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