Background
In vitro fertilization (IVF) has emerged as one of the most promising solutions to the problem of global infertility. The World Health Organization (WHO) defines infertility as “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.” During IVF, eggs are harvested from a female and fertilized by sperm outside the womb. After fertilization, a selection of the resulting embryos are transferred to a womb [
1]. As originally intended, this technique was developed to help women conceive and carry a baby to term. The world’s first IVF baby, Louise Brown, was born on July 25, 1978, in the United Kingdom [
2]. The world’s second and India’s first IVF baby, Kanupriya, (alias Durga) was born 67 days later October 3, 1978. [
3] Later, in 1986, a court in the state of New Jersey recognized the legitimacy of the traditional/genetic surrogate mother for the very first time in the well- known “Baby M” case [
4].
Surrogacy is an arrangement through which a surrogate mother bears and delivers a child for another couple or person [
5]. A traditional/genetic surrogacy is when a surrogate is artificially impregnated with sperm, usually from the intended parent, but may also be donor sperm, with the intention of that sperm fertilizing her (the surrogates) egg, thereby making her both the genetic and gestational mother [
5]. In gestational surrogacy, embryos that are not genetically related to the surrogate are implanted into the uterus of the surrogate, who will then carry the gestation to term, the intended parent(s) being the individual(s) with ownership of the aforementioned embryos.
Generally, gestational surrogacy is based on the types of contractual arrangements between parties and includes either a commercial or altruistic transaction depending on whether the surrogate receives a financial reward for her pregnancy or not [
6]. When individuals or the entities that represent them (e.g. agencies and clinics) enter into any surrogacy arrangement, the laws that can be applied to that arrangement will be from the country where the contract originated and also the country where the baby is born. This explains why commercial surrogacy contracts can be common in countries without surrogacy regulations.
Gestational surrogacy has grown in popularity in different parts of the world over the last two decades (though there is a lack of evidence of increases in age-specific rates), and this increase can be attributed to rates of infertility and changes in traditional family structures [
7]. In 2010, 1.9% of women aged 20 to 44 were unable to achieve their first live birth (primary infertility), and 10.5% of women with a previous live birth were unable to have a second child (secondary infertility) [
8]. Concomitantly, single parents or same-sex couples have added relevancy to assisted reproductive technologies (ARTs), such as in vitro fertilization, oocyte and embryo donation, and surrogacy [
9].
Adoption and surrogacy are two discrete options for people who cannot carry their own children. Over the past several years, many countries now permit same-sex couples to marry and adopting or using a surrogate can be the next step to having a family (though the growth in children raised by same sex couples may also be impacted by artificial insemination by donor sperm, children born into heterosexual unions prior to same sex family formation, or other informal means.) For example, in the United States, it is projected that between 2 and 3.7 million children have a lesbian, gay, bisexual, or transgender parent; approximately 200,000 children are being raised by same-sex couples [
10]. This number reflects both adoption and surrogacy arrangements. However, declines in the U.S. rate of adoption and overall rate of international adoptions along with the continued progress and success rates of types of ARTs, may also impact whether gestational surrogacy is viewed a viable or popular pathway to reduce infertility or for same-sex couples who cannot conceive.
Importantly, a global governance framework to harmonize commercial surrogacy laws, regulations, and policies does not currently exist, which has led to widespread variation in how commercial surrogacy arrangements are regulated. Some countries, such as Georgia, India, Russia, and Ukraine, legally allow both commercial and altruistic surrogacies [
4]. In contrast, the United Kingdom, Australia, and Canada consider altruistic surrogacy legal, but have banned forms of commercial surrogacy [
4]. France, Italy, Germany, and China prohibit both forms of surrogacy [
4]. The United States does not have national commercial surrogacy legislation, but in some states, like California, the practice is legal and regulated [
11].
Consequently, several academic commentators and human rights organizations have advocated for greater regulation and oversight, while at the same time, religious organizations and feminists’ groups, among others, support prohibiting gestational surrogacy [
12]. As an illustration, the European Parliament’s 2014 Annual Report on Human Rights and Democracy condemned the practice of commercial surrogacy and deemed the utilization of gestational surrogates as reproductive exploitation. The European Parliament also declared that commercial gestational surrogacy should be prohibited in order to protect vulnerable women in low income countries [
13]. This includes potential alignment with international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.
Previous studies have examined surrogacy legal and policy arrangements in detail, examining countries such as the United States, Australia, India, and the Ukraine [
14‐
16]. Many studies have scrutinized commercial surrogacy in India and Western Europe, but only few studies have specifically examined laws, regulations, and policies associated with commercial surrogacy in South American countries, despite the fact that the region has become a reproductive tourism destination during the past decade [
7]. To address this gap of knowledge, this article conducts an in-depth review and analysis of the policy environment for commercial surrogacy in South America.
Specifically, our review primarily focused on assessing different policy responses to commercial surrogacy in South American countries, analyzing their current legislation, and depicting how regulation has changed over time. For clarification and for the purposes of this study, South America includes the countries Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela.
Methods
We conducted an interdisciplinary multi-lingual literature review examining journal articles, original research, legal cases, law review articles, commentaries, and news reports indexed in three scholarly databases. We queried key search terms on PubMed (Medline), JSTOR, and Google Scholar for Spanish-language articles that contained the words “surrogacy,” “maternidad surrogada,” “gestacion por sustitucion,” “vientre de alquiler,” and “maternidad intervenida,” and English-language articles that contained the words “surrogacy,” “transnational surrogacy” “commercial surrogacy,” “gestational surrogacy,” “reproductive tourism,” and “surrogate parentage” in the Title/Abstract field in the respective databases’ advanced search settings. The review was limited to articles published between 2000 and 2016.
The review focused on articles that discussed topics of domestic and international law, policy, regulation, and governance related to commercial surrogacy. The subject focus necessitated excluding literature that: (1) discussed surrogacy in non-Latin American jurisdictions; (2) articles primarily or solely discussing other reproductive health and medicine issues (e.g., abortion, IVF, gamete and human embryo donation); (3) articles focusing on the bioethical components or arguments for or against surrogacy that did not include discussion of policy and law; and (4) studies focusing on clinical practice and outcomes associated with surrogacy arrangements. Although these other categories are important, this review primarily focused on assessing different policy responses to commercial surrogacy in South American countries, analyzing their current legislation, and measuring how regulation has changed over time.
To supplement information contained in the peer-reviewed literature, the review also examined information sources from the gray literature, which included technical reports or guidance from government agencies, news reports from media outlets (e.g., nonscientific sources), information from nongovernmental organizations or advocacy organizations, pertinent pending and enacted domestic legislation, legal cases, and information from government agency websites.
Examining both the academic literature and gray literature allowed us to identify each South American country’s laws, regulations, and policies related to surrogacy and also assess surrogacy case studies that have been adjudicated in the courts. This allowed us to identify case studies for certain countries that illustrate real-world examples of surrogacy arrangement and the unique legal challenges they face in courts. Case studies were selected on the basis of adjudication of a surrogacy arrangement, legal precedence, and relevance to national surrogacy law. Although this literature review was comprehensive it was not a systematic review.
Discussion
The objective of this article was to review, characterize and describe the legal status of surrogacy arrangements in South America. Results indicate that South American societies and public views regarding ART and surrogacy have changed over time, but regulations and laws have been slow to adapt, which creates complicated situations illustrated by the varying laws and case studies. South America, like other regions of the world, regulates or fails to regulate surrogacy arrangements and legislates it in different and disparate ways, often in relation to whether the situation relates to a commercial or altruistic surrogacy arrangement. For example, commercial surrogacy arrangements are expressly prohibited in some countries but also remain unregulated in many countries. Further, we did not observe any laws in place that regulate the maximum number of embryos that may be carried by a surrogate woman, nor the gestational age of the surrogate woman, nor the need for counseling.
In one group of countries, including Argentina and Colombia, legislative bills were introduced and then rejected. In another group (Bolivia, Chile, Ecuador, and Peru) legislative bills have been introduced to specifically regulate surrogate motherhood. However, none of these bills have reached a final conclusion, and either remain pending, under discussion, or in legal hiatus prior to a final decision to enact or deny such legislation. Conversely, Brazil - which has generated guidelines - and Uruguay are the only South American countries that expressly allow altruistic surrogacy. In the remaining countries reviewed, Paraguay and Venezuela have not specifically addressed surrogacy in any way, but have existing legislation that can be interpreted to help judges make decisions about these arrangements. These results demonstrate a great deal of regional variability in how national legal frameworks, guidance instruments, and regulations address surrogacy in South America.
Surrogacy has not been regulated in Latin American countries because the traditional Catholic belief system plays a preeminent role in the judicial system and what public policy is legislated. This despite most South American countries’ constitutions upholding the separation of church and state. Introducing and passing legislation about controversial topics, such as ART and surrogate motherhood, generates a huge amount of public debate and controversy, because a large segment of the population believes human procreation should be limited to the natural ways dictated by the
Donum Vitae (gift of life), a 1987 document written by Joseph Cardinal Ratzinger (former Pope Benedict XVI). It details the Catholic Church’s position on the dignity of human life, and addresses specific biomedical ethical issues about respect for human life, technical interventions into human procreation, and the status of human embryos and fetuses [
20]. This document expressly bans ARTs [
20].
Beyond the broader challenges of global infertility, new family structures make the issue even more complex, particularly same-sex marriage that is now legal in 24 countries worldwide, including four in South America (Argentina, Brazil, Colombia, and Uruguay). Other countries in the region have approved domestic partnerships between same-sex couples (Chile and Ecuador) [
62]. Accordingly, surrogacy and adoption options are offered to couples experiencing infertility and same-sex couples who would like to start a family, a trend that will likely impact future legal developments on regulation of surrogacy in the region.
The most pressing concern is the growing and ever-expanding transnational market for commercial gestational surrogacy that uses surrogate mothers from low-income countries where disparities due to gender, class, race, and ethnic hierarchies are prominent and have become an economic motivating factor in the growth of reproductive tourism [
63]. In the case of domestic surrogacy, the intended parents’ income is often three times that of the surrogate women creating potential ethical issues and power imbalances in the ability to negotiate a surrogacy contract or dispute in relation to the surrogacy arrangement [
63].
Fertility clinics are also taking advantage of current legal loopholes and/or lack of regulation. Yet, lack of regulation or regional regulatory coherence does not appear to be an obstacle if women wish to offer their services as a surrogate mother, because the Internet and social media have emerged as popular methods to market and solicit surrogacy services, even when the practice is not legally protected or permitted. The Internet has been reported as a common forum for prospective surrogates and clients (regardless of location or citizenship) to offer or request surrogacy services [
64]. South America’s maturing reproductive tourism market is fortified by the lack of consistent regulation and pervasive poverty indicators. The problem exists between the market and in-country legislators seeking to follow moral and appropriate customs dictated by tradition and religion.
Multiple authors cited in this article [
26,
27,
65] expressed their concerns about the lack of effective legislation, and agreed that more robust legal frameworks are necessary to regulate commercial surrogacy. For instance, in February 2016, a group of experts on parentage and surrogacy met at The Hague Conference on Private International Law. The meeting was attended by 21 experts representing 21 states globally, including some states involved in international surrogacy arrangements. Conference participants reached the conclusion that an international public policy framework for surrogacy agreements, which focuses on protecting children’s legal status and that prevents exploitation of women surrogates, is urgently needed [
66].
Creating an international public policy framework is likely an ambitious goal, but the World Health Organization—more specifically the Pan American Health Organization (PAHO) that exerts influence over public health issues in South America—could take a leadership role in creating consensus and guidelines to harmonize commercial surrogacy policies. These policies should be aligned with public health principles while also acknowledging the unique values and culture of the region when establishing rules to protect all intervenient parties in a surrogacy agreement. Many decisions are pending, and answers to such questions such as whether there should be requirements for the age of surrogate women, how many times an individual can act as a surrogate woman, how many eggs should be fertilized, what sort of economic compensation is ethical, and which state is obligated to offer citizenship to the newborn if the surrogacy crosses borders, are questions that will have to be addressed in such a framework.