It is increasingly common that some people who want to conceive children may be faced with infertility problems due to genetic conditions, hormonal disorders, or anatomical alterations of the female or male reproductive system, among other causes that prevent their desire to procreate and start a family; or in other situations, we find heterosexual couples, homosexuals and single parents who turn to surrogacy as a technique of assisted reproduction and see in it the opportunity to have their longed-for children.
Surrogacy in Colombia, also called ""Surrogate Motherhood"" or "Surrogate Womb" in more colloquial terms, was recognized by the Constitutional Court, in "judgment T-968 of 2009" as a way to solve the problem of infertility of couples. However, it is not fully regulated in Colombia.
In this article, we will tell you in detail what surrogacy is in Colombia, the jurisprudential pronouncements, and other legal aspects that must be taken into account if you want to perform this technique in Colombia.
What is surrogacy in Colombia?
Surrogacy in Colombia known as surrogate motherhood is a reproductive technique in which a woman called "surrogate mother" rents or lends her womb or uterus, under a contract in which she agrees to gestate a baby until the term of its birth, delivering it to the contracting parent or parents once the birth occurs. Such surrogacy can be altruistic or onerous.
It is important to point out that although neither of the two options mentioned is prohibited in Colombia, the jurisdictional line of "judgment T-968 of 2009" recommends the altruistic modality.
Likewise, it is important to clarify that in most cases, the woman who is in charge of the gestation of a child by this type of method, does not provide her eggs, but simply lends her womb where the genetic material product of the previous insemination, is the one that bears fruit to the future baby.
In AGT Attorneys, we have a team of surrogacy lawyers fully trained to guide you in each of the processes described below and that your legal requirements on this issue are managed with the utmost professionalism and dedication. Contact us to our WhatsApp line +57 310 5706331.
Can surrogacy be performed in Colombia?
Currently, the Colombian legal system does not regulate surrogacy in Colombia, since there is no current legal framework that manages the scope and rules concerning this assisted reproduction technique. As of right now, only the pronouncements of the Constitutional Court led the way on how to achieve legal surrogacy. However, no provision contemplates the express prohibition to perform it.
In this regard, Article 42, paragraph 6 of the Political Constitution of Colombia implicitly legitimizes surrogacy by stipulating that children born in or out of wedlock, adopted or procreated naturally or with scientific assistance, have equal rights and duties as those born during a marriage. Likewise, it implicitly contemplates the possibility of entering into agreements between the parties under the principle of the right to free development of the personality. This principle represents the freedom of any woman to offer her womb in order to help other people with internal reproductive who desire to become parents.
However, since it is not regulated in Colombia, there are no specific requirements or conditions for those interested in performing surrogacy, so this practice generates in some cases excessive profit on the part of the parties who reach economic agreements, as well as lack of protection of the rights of the newborn child and disagreements that end in lawsuits and legal conflicts to obtain parental authority and custody of the newborn.
In this sense, the Constitutional Court in ruling "T-968 of 2009", defined certain parameters to be taken into account in the regulation of surrogacy, which contemplate certain requirements and possible clauses that should be included in the agreements made by the interested parties:
The woman interested in having a child has physiological problems to conceive.
The pregnant woman does not provide the gametes required for conception, that is, the woman who rents or provides her womb.
The gestating woman does not have a lucrative motive, but to help other people.
The pregnant woman fulfills a series of requirements such as the age of majority, psychophysical health, and having had children.
The pregnant woman must undergo the pertinent examinations before, during, and after the pregnancy, as well as psychological evaluations.
The identity of the parties remains preserved.
The pregnant woman, once the informed consent has been signed and the reproductive material or gametes have been implanted, cannot withdraw from the delivery of the child.
The biological parents cannot reject the child under any circumstances.
The death of the biological parents before the birth does not leave the child unprotected.
That the pregnant woman could only interrupt the pregnancy by medical prescription, amongst others.
In this order of ideas, although there is a regulatory vacuum concerning the practice of surrogacy, our AGT lawyers recommend interested parents to adjust the conditions established in the jurisprudence of the Constitutional Court, specifically the ones established in sentence T-968 of 2009.
From the legal point of view, the practice of surrogacy in Colombia must have a regulated legal framework in order to be carried out in a responsible manner and guarantee all the rights of the newborn. Having that in mind, it is important to recognize that the rights of the newborn prevail over those of the parent or parents, as a guarantee of their integral development and the full exercise of their fundamental rights.
What is the legal process of surrogacy in Colombia?
Before starting a surrogacy in Colombia, the surrogate woman should be evaluated from the medical, physical, and psychological viewpoint, so that she is within adequate conditions to gestate a child. It is essential to evaluate her health so that no possible complications may arise during her pregnancy and avoid any subsequent legal conflict.
The contract in Colombia is an agreement of wills of two or more parties who have full legal capacity to bind themselves to a certain purpose, once signed it generates legal effects and enforceable obligations in case of a breach.
According to the above, in AGT Abogados we recommend to all our clients interested in carrying out surrogacy in Colombia to sign a contract that includes the following:
The object of the contract.
The obligations of the parties involved.
The price and the payment conditions in case they so agree.
Inclusion of the rights in favor of the child.
Any other relevant clauses that shield the legal agreement in each specific case and the interests of the parties.
It is important to clarify that any agreement or contract entered into for surrogacy shall be valid and shall not be considered unlawful considering that they are not expressly prohibited by the Colombian legal system. In this regard, the contract would be the result of the consent and capacity of the contracting parties by virtue of the exercise of their right to freedom and human dignity.
In any case, among the obligations of the woman who rents the womb must be present the obligation to deliver the newborn once the nine months of pregnancy have elapsed, the birth has taken place, and to assign all the rights of the minor to the contracting parties. Similarly, other clauses can be contemplated, such as not attempting to create a maternal-subsidiary relationship from the birth of the child, as well as not consuming alcohol, hallucinogenic or harmful substances during pregnancy.
The contract must specify the compensation that the surrogate woman will receive for the fulfillment of the obligations stipulated for the surrogacy, which could be a sum agreed upon for the gestation, care, and medical expenses generated during the pregnancy.
Similarly, it is necessary to stipulate a non-compliance clause, for example, a penalty clause that stipulates an amount to be paid in case of a breach of contract by any of the parties. This clause is an effective measure that encourages full compliance with the obligations assumed, mostly when the amount of the penalty is sufficient to make compliance more effective. As well, an indemnification clause for the damages caused by the party that does not comply with the signed agreement should be included.
In our firm AGT Abogados, we do not recommend the interested parties to make verbal contracts since there is no proof of the agreement in the event that the woman who rents the womb creates ties with the newborn and decides to keep it as her own. Therefore, in the event of a possible lawsuit, it is important to have all the evidence of the agreement made.
What are the modalities of surrogacy in Colombia?
Surrogacy can be performed in a total or partial way.
Total surrogacy consists in the fact that the surrogate woman provides her own egg for the respective fertilization process, commonly performed through artificial insemination. In this case, the sperm can be provided either by a donor or by the contracting male parent.
Partial surrogacy consists in that the conception takes place by the union of an egg of the contracting female parent with a sperm of the contracting male parent or of a donor in a laboratory through the process of in vitro fertilization, which results in an embryo that is implanted in the uterus of the surrogate or gestational mother. Therefore, in this case, the gestational carrier does not provide the genetic material, but merely lends her womb for the respective implantation.
This last modality is the one recommended by the Constitutional Court and the one considered by definition as a real surrogacy since the child born and gestated in the surrogate mother's womb is the biological child of the couple who rented a womb but contributed their genetic material.
Make your consultation with expert surrogacy lawyers who will be able to guide and solve all your legal doubts regarding this important issue. Contact us at our WhatsApp line +57 310 5706331.
Learn more about surrogate pregnancy from our CEO, Dr. Nicolás Alviar in the Telecafé Program:
What are the implications of surrogacy in Colombia?
Assignment of all rights. The woman who rents the womb must comply with her obligation to deliver the newborn once the birth has taken place, ceding all the rights she would have had over the minor under the obligatory nature of the contract signed by the parties and in the best interest of the minor, terminating the rights of the surrogate mother.
Permission of Exit of the Minor. In case the baby is the child of a foreigner, the parent who is not going to travel with the minor must voluntarily grant written permission for the minor to leave the country, which must be authenticated before a notary or consular authority. Without prejudice of the previous, when there is a dispute over the custody of the minor, the parent of the minor may file a claim for permission to leave the country directed against the other party before a family judge.
Civil registration of birth. The birth of a newborn must be registered in the civil registry. This procedure must be carried out by the child's parents within the month following its birth. The state recognizes through the civil registry the rights and duties of Colombians before society and the family.
Lawsuits. If the surrogate mother or woman who rents the womb refuses to deliver the newborn, the contracting parents may file a lawsuit before the courts in order to demand that the woman complies with the conditions agreed upon in the contract.
Likewise, the woman may file a lawsuit to obtain custody and personal care of the child because she is the gestating mother, in which the specific case must be analyzed very well, analyzing if there was a written contract, evidence that proves the tests taken to the surrogate mother, the origin of the eggs that gave birth to the baby, payment consignments, among others. After gathering all the information, the judge should be able to determine the purpose of the pregnancy was to believer the child to the contracting party.
There may also be the event that the contracting couple does not accept the newborn for different reasons, in which case the clauses agreed in the contract must be analyzed to review whether the prohibition of not rejecting the baby under any circumstances was contemplated so that the child is protected at all times.
How much does a surrogacy process cost in Colombia?
This may be a very frequent question; however, it is not possible to stipulate an exact value on the cost of the whole procedure involved in a surrogacy in Colombia; due to the multiple factors that may arise from obtaining the genetic material with specialized clinics, carrying the pregnancy to term and the legal procedures that may arise after the successful arrival of the baby. However, it could be calculated an estimated value between $30,000 and $70,000 USD for procedures of this type in Colombia.
Do you want personalized legal advice on the process of surrogacy in Colombia?
In our law firm, we have a great team of experts in Family Law fully empowered to provide legal guidance regarding surrogacy in Colombia. Our professionals are trained to manage all contractual issues, supervision, follow-up and civil procedures required, with the relevant clauses so that the surrogacy process is done safely.
Write to us on our Contact Form, schedule your legal appointment with our lawyers through the following link or contact us at +57 310 5706331.
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