I prefer to call the method known as “surrogacy” “Solidarity Gestation”, for the act of generosity which implies that a woman offers herself as a means to help another person or a couple to start a family.
This practice is considered as a therapeutic option within TRHA (Assisted Human Reproduction Treatments) for those who, for different reasons, cannot carry a pregnancy. But it also represents one of the most complex scenarios in filiation matters since, although it is legal in argentina (because it is not prohibited), it is not expressly regulated. What is prohibited is surrogacy, because it means a monetary consideration.
Our Civil and Commercial Code establishes that the parent(s) will be considered the one or those who have given their consent. The “procreational will” of people who want to be parents is what determines the filial bond, not the genetic material donated, nor their biological process. Because biologically giving life to a child through gestation does not make the person a “parent.” What distinguishes surrogate motherhood from traditional motherhood is the desire to “be” and “have”. The pregnant woman does not want to be a mother or play that role, she only wants to collaborate with the person or couple who does.
The TRHA introduce a clear distinction between the biological, genetic and voluntary aspects of filiation, which is of great importance in the determination and possible filial challenge.
Through gestation, a filiatory legal link is not acquired with the child born by this technique, but only the child retains the right to know his origins. Fortunately they exist jurisprudential cases that have set precedents, prioritizing the “procreational” will of those who want to be parents, displacing the biological and genetic bond of the pregnant woman. In this way, the receiving parents acquire all the obligations and rights derived from filiation.
“The Solidarity Gestation” requires careful analysis from a legal and bioethical point of view to guarantee the best interest of the child on the one hand and, on the other, the right of the receiving parents and of the women who jointly carry out the gestation.
In our country, this method presents specific complications in relation to the place of birth of the child. Throughout the Argentine territory, except in the Autonomous City of Buenos Aires, a judicial procedure is required both to register it in the Registry of Persons of the area and for a subsequent challenge of maternity. That is why it is very important to judicially request filiation to carry out this practice since, contrary to what is believed, the judicial procedure is quite agile.
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by CEDOC
