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surrogacy in colombia - All you need to know

June 22, 2023

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Surrogacy in Colombia

In recent years, it is increasingly common to resort to alternative reproductive methods, depending on different factors such as genetic conditions, hormonal disorders, or anatomical alterations of the female or male reproductive system. Additionally, people who want to start a family but are single parents or are in a same-sex relationship resorts to these methods, more specifically to one in particular: surrogacy.

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 an alternative reproductive method.

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?

As established by the United Nations, surrogacy is a reproductive practice on the rise. It refers to a form of a third party reproductive practice in which an intending parent or parents contract with a surrogate mother or gestational carrier to give birth to a child.

Surrogacy in Colombia is a reproductive technique in which a gestational carrier/surrogate mother carries to full term a pregnancy of a child for the intended parent(s) who usually are also the biological parents of the minor.

In the Colombian legal system, surrogacy has been defined by doctrine through "Sentence T-968 of 2009" as the following:

"It is the reproductive act that generates the birth of a child gestated by a woman subject to a pact or commitment by which she must cede all rights over the newborn in favor of another woman who will appear as the mother of the child. In this event, the woman who gestate and gives birth does not contribute her genetic material".

Surrogate mothers or gestational carriers (accurate legal term) agree to carry the pregnancy to term and once the child is born, deliver it to the parent(s). In this case, they undertake to hand over the child to the people who commissioned it and assumed the payment of a certain sum of money or the expenses incurred for the pregnancy and delivery.

Through ""Sentence T-968 of 2009"" it was established that surrogacy is not prohibited in Colombia, hence with altruistic or onerous options are available currently in our legal system. However, the judicial pronouncement recommends the altruistic modality.

Additionally, it is important to clarify that in most cases, the woman who is in charge of the gestation simply lends her womb and the genetic material is provided by the intended parent(s).

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.

Types of surrogacy in Colombia?

Surrogacy can be classified in two (2) types:

Traditional surrogacy The surrogate is genetically related to the child she carries because her own egg is fertilized with the intended father's sperm or donor sperm through artificial insemination.
Gestational surrogacy The surrogate carries a child conceived through in vitro fertilization (IVF) using the eggs and sperm of the intended parents or donors. The embryo is created in a laboratory and transferred to the surrogate's uterus, who carries the pregnancy but does not have a genetic relationship to the child.

Colombia's Constitutional Court established that gestational surrogacy will be understood in legal matters as the actual surrogacy concept. Hence, surrogacy will be defined as the reproductive act that generates the birth of a child conceived by a woman subject to a pact or commitment.

As mentioned above, the gestational carrier must cede all the rights over the newborn in favor of another woman who will appear as the mother of the child as determined in the so-called surrogacy contract or agreement.

    In the event of the gestational modality, the woman who gestates and gives birth does not contribute her eggs and there is a unique commitment to gestate the embryo and give birth to it.

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:

Fuente: Canal Telecafé

Can surrogacy be performed in Colombia?

The Constitutional Court of Colombia, known as "Corte Constitucional" is the highest tribunal in the Colombian judiciary in matters of Constitutionality. The primary function of the Constitutional Court is to ensure the supremacy and effectiveness of the Colombian Constitution.

The Court can declare laws or parts of laws unconstitutional, and its decisions are binding on both the government and the citizens.

On that matter, explicitly in the Sentence T-968 of 2009 the Constitutional Court established:

In the Colombian legal system, there is no express prohibition for the execution of this type of agreements or arrangements. However, with respect to assisted reproduction techniques, within which surrogate or substitute maternity is located, the doctrine has considered that they are legally legitimized, by virtue of article 42-6 of the Constitution, which provides that:

"Children born out of wedlock, adopted or procreated naturally or with scientific assistance, have equal rights and duties."

The doctrine has come to consider surrogate motherhood as a positive mechanism to solve the infertility problems of couples or single parents. As a result, it has also pointed out that there is an urgent need to regulate the matter to avoid situations that could affect negatively the rights of the minors, the intended parents, and the gestational carrier.

As of right now, since there is no legal norm that regulates surrogacy in Colombia, 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 surrogacy in Colombia.

  • In conclusion, surrogacy is legal in Colombia.

  • Consultation with experienced attorneys

    How does surrogacy work in Colombia?

    As mentioned before, there is no specific law or norm that regulates the surrogacy process in Colombia. However, the Constitutional Court has established some criteria to protect the rights of all parties involved, accompanied by the request of regulation.

    Seeing that, it has been established that a number of requirements and conditions must be followed in this solicited regulations. Such as:

    • 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, the recommendations issued by the Constitutional Court are important for intended partners and gestational carriers to include in agreements for the protection of their rights.

    At AGT Attorneys, we recommend intended parent(s) 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 responsibly and guarantee all the rights of the newborn.

    Having that in mind, it is essential 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.

    How is the surrogacy process in Colombia?

    Initially, surrogacy as the process to start a family can be seen as strictly medical. However, for the surrogacy process to take place, various steps and factors combine, like economical, medical and, legal.

    These are some of the stages that an intended parent(s) will face during their surrogacy process:

    1. Select a surrogacy jurisdiction or country:
    2. International intended parent(s) seeking to undergo a surrogacy process in a specific country must carefully choose the appropriate jurisdiction. It is crucial to consider factors such as the country's legislation, average duration of the process, and available fertility treatments.

      To ensure a smooth and optimal experience, it is highly advisable for intended parent(s) to engage the services of a surrogacy attorney during this stage.

    3. Searching for a surrogate mother:
    4. The selection of a surrogate mother for the intended parent(s) can include relatives and/or close friends. However, when intended parents are in search of a surrogate, they have the option to seek assistance from intermediaries such as surrogacy attorneys, agencies, or clinics to find a suitable candidate.

    5. Selection of a clinic, agency, or attorney:
    6. Professionals in countries with a long history of surrogacy, such as Colombia, offer comprehensive surrogacy services. Intermediaries such as agencies, fertility clinics, and surrogacy attorneys have extensive expertise and tailored strategies to assist intended parent(s). They possess the necessary experience and resources to guide intended parents in achieving their surrogacy goals.

    7. Drafting a review of legal contracts:
    8. To ensure the legal aspects of surrogacy are properly handled and the rights of the intended parent(s), gestational carrier and the unborn child are safeguarded, the involvement of an attorney is essential.

      The attorney plays a crucial role in shaping the surrogacy process and ensuring legal protections are in place. Their expertise is necessary to navigate the complexities of surrogacy law and provide guidance throughout the entire legal journey.

    9. Immigration and registration:
    10. When intended parent(s) choose to pursue surrogacy in a country such as Colombia and desire to legalize the process and return to their home country, they must undergo immigration procedures.

      Furthermore, it is necessary to complete the civil registration process for both the child and the intended parent(s) to ensure the surrogacy is legally recognized. These steps are crucial in ensuring the surrogacy is properly legalized, and all necessary documentation is in place for the child and the intended parent(s).

    11. Legal disputes:
    12. While not all intended parents go through this particular stage of the surrogacy process, it is possible to prevent it with the assistance of a surrogacy attorney during the drafting and review of legal contracts.

      By working closely with a surrogacy attorney, intended parents can mitigate the occurrence of this stage and ensure a smoother surrogacy experience. The attorney's guidance in preparing and examining the legal agreements can help prevent any potential legal disputes that may arise.

    As mentioned above, surrogacy is more than just a fertility treatment, it has different layers and stages that intended parent(s) have to go through in order to start or expand their families. As a result, the advice of professionals like a surrogacy attorney will be much needed and useful during the surrogacy process.

    The surrogacy contract in Colombia

    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 gestational carrier must be included the obligation to deliver the newborn once 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, a penalty clause for the damages caused by the party that does not comply with the signed agreement should be included.

    In AGT Attorneys, we do not recommend the interested parties to make verbal contracts since there is no proof of the agreement. Hence, it will be helpful to avoid conflicts in the future within the same parties. Therefore, in the event of a possible lawsuit, it is important to have all the evidence of the agreement made.

    What are the implications of surrogacy in Colombia?

    • Assignment of all rights. The gestational carrier must comply with her obligation to deliver the newborn once the birth has taken place, transferring the rights to the intended parent(s), among others included in the contract.

    • Permission of Exit of the Minor. In case the child has foreign parents, the parent who is not going to travel with the minor must voluntarily grant written permission for the minor to leave the country.

    • 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 gestational carrier 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, the origin of the fertilized eggs, 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.

    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. These factors may include: 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.

    Draft bill for surrogacy in Colombia

    On February 2023, the Ministry of Justice and Law, along with the Ministry of Health and Social Protection, presented the draft bill to regulate surrogacy in Colombia. This was done in compliance with the order issued in Sentence T-275 of 2022, that called upon the Colombian government to regulate surrogacy in the country.

    The object of this draft bill is to regulate surrogacy for gestation in Colombia, establishing:

    1. Parameters that regulate the assistance and clinical process.
    2. The type of agreement between the parties.
    3. The filial relations and the protection of the surrogate and the fruit of the gestation, in order to guarantee rights such as freedom of personality development and sexual reproductive rights. All of these rights are an integral part of the fundamental right to health, in accordance with the principles of human dignity, reproductive autonomy and equality.

    For this draft bill, adopts the gestational surrogacy definition, in which the gestational carrier does not have any genetic affiliation with the child. For the matter of the document, it will be named as: "uterine surrogacy for gestation"

    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.

    If you found this article helpful then let us know in the comments section below. Likewise, feel free to share it using the share options below. Want us to cover another topic of your interest pertaining to legal affairs? If so, then like us and follow us on social media, and post to any of our social media profiles the topic you'd like us to discuss: Facebook AGT Attorneys and Twitter @AttorneysAGT

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