Revista Ius et Praxis
Talca, Chile, 2022
Artículo
Fecha de recepción: 2021-12-16; fecha de aceptación: 2022-07-11
MALE SAME-SEX COUPLES AND SURROGATE MOTHERHOOD:
AT A CROSSROADS
Parejas masculinas del mismo sexo y maternidad subrogada:
en una encrucijada
CARLOS JESÚS MOLINA-RICAURTE *
JAIME ELÍAS TORRES BUELVAS **
Universidad Cooperativa de Colombia
Abstract
Surrogate motherhood is a practice that is increasingly standing out from the already known forms of
reproduction, primarily because of its evolution in such a short period. These fast-paced changes entail a truly
complex reality for the practice that requires the attention of bioethics, law, and politics. At present, surrogate
motherhood is a valid option for, among others, male same-sex couples who wish to be parents. However,
legal and economic barriers that bring about inequity and injustice remain. Therefore, it becomes necessary
to analyse and synthesise these topics.
Key words
Male same-sex couples, parenthood, surrogate motherhood.
Resumen
La maternidad subrogada es una práctica que se aparta, cada vez más, de las formas de reproducción ya
conocidas, en buena parte, por la evolución que ha experimentado en tan poco tiempo. Estos cambios
vertiginosos hacen de ella una realidad muy compleja que requiere la atención de la bioética, el derecho y la
política. Hoy la maternidad subrogada se convierte en una opción válida para las parejas masculinas del mismo
sexo en la búsqueda de la paternidad. Sin embargo, siguen existiendo barreras legales y económicas que
generan situaciones de inequidad e injusticia. Por ello, se hace necesario analizar y sintetizar estos temas.
Palabras clave
Parejas masculinas del mismo sexo, paternidad, maternidad subrogada.
Introduction
Surrogate motherhood, or ‘third party reproduction,’ is an assisted human reproduction
technology (AHRT) that has existed for more than three decades but still generates controversy;
hence, it continues to be part of the academic debate. The concept has indeed evolved
considerably, which is why we do not face the same issues currently that we did two decades
ago. Numerous countries have already passed laws on surrogate motherhood, and there are
debates around the need for international regulations. The fact that many countries, at the time
of writing, forbid surrogacy, establish restrictions for its practice or simply give free rein to it
only shows how difficult, if not impossible, it is to arrive at uniform international legislation.
Many studies favour the primary interest of the child or the rights of surrogate mothers;
however, this study aims to assess the rights of those who willingly agree with a woman to
undergo a reproductive medical procedure and bear their child until the end. Once the child is
*
Universidad Cooperativa de Colombia, Bogotá, Colombia. carlosj.molina@campusucc.edu.co.
Universidad Cooperativa de Colombia, Bogotá, Colombia. jaime.torresb@campusucc.edu.co.
**
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born, she will also commit to surrender any rights to the child to the people we will call ‘intended
parents.’
Undoubtedly, considering the rights of the intended parent(s) within the framework of
surrogate motherhood can help the law provide the necessary answers to the new challenges
that this globalised world poses. Currently, health problems related to infertility are garnering
the attention of healthcare systems in most countries and are becoming relevant among public
health policies, plans and programmes. Male same-sex couples do not have infertility problems
in the strictest sense; however, surrogate motherhood allows them to become parents by
agreeing with someone willing to carry the child. In such agreement, she decides to bear a child
and, once said child is born, deliver the child and surrender her motherhood rights to the couple
in question.
Male same-sex couples can enter into such an agreement in their own countries or
abroad; however, a problem arises within countries that forbid or impose restrictions on
surrogate motherhood. Citizens who agree to the practice abroad generally generate severe
conflicts when the relevant authorities do not grant them their child’s birth certificate upon
returning to their country 1.
This study proposes an analysis of surrogate motherhood as an option for male same-sex
couples based on equity and justice criteria. The analytic-synthetic method is employed herein
because such a method first deconstructs the subject of the investigation into parts or
components, which, in this case, are the rights of male same-sex couples opting for surrogate
motherhood. Subsequently, a synthesis is performed that reveals the relationships between the
different elements that compose the phenomena or reality of the subject.
This study also incorporated the feedback received in different academic spaces,
particularly from colleagues in interdisciplinary fields such as gender studies. Most of these
colleagues come from countries with a civil law tradition, where the rights of surrogate mothers
have been gaining prominence, thereby making the practice of surrogate motherhood much
more restrictive. The need to ascertain points of comparison among different legal systems was
soon identified, even for countries under common law, such as the United States. Such
comparison helped us understand the problem from a global perspective and propose the
primary supposition that we seek to confirm: It is necessary to have international regulations on
surrogate motherhood that meet the demands of equity and justice.
1. Surrogacy relationships
First, the involved parties in the ‘surrogacy relationship’, as Stuvøy 2 calls it, must be
identified: the woman who agrees to bear a child and the person or couple that wishes to
become parents through surrogacy. However, there can also be a third donor. In the first
scenario, the woman agrees to bear a child; she can choose whether to donate her genetic
material because the possibility of the person or couple in question supplying their genetic
material could also exist. In the second scenario, or the third one, if we consider the previous
possibility to be the second scenario, a third party donates the egg to be fertilised or the sperm—
depending on the case—that will later be implanted in the surrogate mother 3.
Surrogate motherhood is defined through a surrogacy agreement, where a person or
couple who cannot bear a child or merely wishes to avoid the process of pregnancy agrees with
a woman who, either gratuitously or in exchange for payment, commits to carrying and
delivering a child to them. In this agreement, the woman expressly surrenders all rights over the
child so that the person or couple in question can assume legal parenthood. Initially, only two
parties agreed: the surrogate mother and the intended parents. Nevertheless, it is possible that
the spouse or partner of the surrogate mother also participates. Some legal systems, particularly
1
FENTON-GLYNN & SCHERPE (2019), p. 562.
STUVØY (2018), p. 37.
3
MARINELLI (2020), pp. 36-43; MENIKOFF (2001), p. 96.
2
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those that allow commercial surrogacy and operations by agencies and intermediaries, consider
the latter taking part in the execution of the agreement 4.
The process of surrogate motherhood, while allowing for the proliferation of diverse types
of legal relationships, has thus far failed to consider an express regulation for all the possible
relationships involved therein. More specifically, the broad extent of the surrogate agreement
makes a successful law challenging to implement because such an agreement can be shaped
either as a gratuitous contract or as one based on payment. Such agreement may include the
surrogate mother, the intended parent(s) alone, and even third parties. It can also consist of an
intended parent (a single person) or intended parents (a heterosexual couple, a homosexual
couple, or even individuals who do not share a civil relationship).
Moreover, the surrogate agreement involves some issues, such as the inequal relationship
between the mother and the parents, in terms of race or socioeconomic status. As Yehezkel
Margalit says “the big and "easy" money involved in such an intimate and seductive issue such
that it may cause some individuals, especially women, to take on unreasonable contractual
obligations that contradict their own interests due to the monetary temptation.” 5
Under those circumstances the women’s will could lead to an inability “to fulfill the
contractual obligation later on” 6 Being a poor or black woman, for example, gives a truly free
will to be part of a surrogate contract? Or what if the woman changes her will? What if it happens
multiple times? What if are the intending parents that change their mind? In the surrogate’s
long-term agreement, those risks must be considered.
One of the solutions to some of the problems mentioned before, was the notion of the
private and free will, as Margalit calls it, in which external characteristics are irrelevant to the
agreement execution. However, as time passes by, the necessity of a judicial intervention was
mandatory in order to reduce the contract’s freedom inequality.
For the reasons mentioned above, there is limited legal development in this regard.
Several countries have interpreted the absence of regulation and the lack of laws forbidding this
practice as a form of permission rather than a legal omission. While in West Europe, countries
such as France, Germany, Italy, Portugal (until 2016), Spain and Switzerland, have expressly
forbidden surrogacy. The significant legal development has appeared in doctrine and case law,
especially in the case-law of state courts, such as in the United States (with Stern v. Whitehead 7
and Johnson v. Calvert 8, to mention only two cases surrogacy before courts), and in international
courts, such as what happened in the European Court of Human Rights [ECHR] (with decisions
made in the following cases: Labassee v. France 9, Mennensson v. France 10 and Paradiso and
Campanelli v. Italy 11, where ECHR has applied two rules, respectively: The couples Labassee and
Mennesson claimed to the French State legal recognition to parent-child relationships that had
been legally established in the United States with children born through surrogate motherhood,
yet the French State refused to register the birth certificates arguing that the surrogacy
agreements entered into by Mr and Mrs Mennesson and Mr and Mrs Labassee were unlawful.
The couples unsuccessfully demand to the French courts to have the birth certificates entered
into the French register of births. The Court of Cassation denied the request. Finally, the couples
Labassee and Mennesson lodged with the ECHR. The ECHR observed that French authorities,
despite being aware that the children had been identified in the United States as the children of
Mr and Mrs Mennesson and Mr and Mrs Labassee, had nevertheless denied them that status
under French law. It considered that this contradiction had undermined the children’s identity
within French society. The Court further noted that the case-law completely had precluded the
4
FENTON-GLYNN & SCHERPE (2019), pp. 558-560.
MARGALIT (2014), p. 430.
6
MARGALIT (2014), p. 433.
7
Supreme Court of New Jersey, Stern v. Whitehead, February 3, 1988.
8
Supreme Court of California, Johnson v. Calvert, May 20, 1993.
9
European Court of Human Rights, Labassee v. France, June 26, 2014.
10
European Court of Human Rights, Mennensson v. France, June 26, 2014.
11
European Court of Human Rights, Paradiso and Campanelli v. Italy, January 24, 2017.
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establishment of a legal relationship between children born as a result of lawful surrogacy
agreement abroad and their biological father 12. Precisely, the existence of a genetic connection
between intended parents and children was decisive in recognising the parent-child relationship
and allowing children to remain with his family. In the Paradiso and Campanelli v. Italy case,
because there was no genetic connection between intended parents and child, their relationship
was not recognised, and children were separated and taken into custody by the State 13.
The most recent Advisory Opinion of ECHR provides recommendations on the recognition
of legal parent-child relationship between a child born through surrogacy arrangement abroad
and the intended mother with no genetic connection to the child but listed on the child's birth
certificate. In this case, the couple’s male partner must be the child's biological parent and listed
on the child's birth certificate as such in order for the parentage to be recognized in front of the
mother by registering the birth certificate or adoption 14. It could also apply to same-sex male
couples’ cases who engage surrogacy abroad, when one of them is the child's biological parent
and both are listed as parents on the child's birth certificate 15. In this regard, Spain issued years
ago a guideline to allow registering births of children born through surrogate motherhood
abroad in the Spain register of births. However, it has had many problems for its
implementation 16.
Countries that allow surrogate motherhood don't even have the same legislation to
determine the parentage. The English legislation, e.g., allocates parentage in cases of surrogate
motherhood based on a post-birth model of recognition: the surrogate mother is regarded as
the legal mother at birth and parentage is subsequently transferred to the intended parents;
however, even the surrogate mother can refuse to transfer the parentage to the intended
parents until the sixth week 17. In South Africa, the parentage is determined pre-conception.
Accordingly, there is no need for a transfer of legal parenthood since intended parents are
considered the child’s legal parents from the moment of birth 18, as well as in Greece 19. In Russia,
it is enough that the surrogate mother and the intended parents agree for the latter to appear
on the birth certificate as child's legal parents, with no need of transfering legal parenthood 20.
Regulating surrogate motherhood has not proven to be sufficient in providing legal
security for the parent-child relationship to children born through surrogacy and their intended
parents, because it does not allow the family bounds to be recognized everywhere. Such legal
uncertainty is one of the most critical points.
The family institution is protected by the legal systems in every country. In some countries
such as Colombia, this protection is present in the Constitution (National Constitution, Article
42) 21. In the case of Argentina, it is stated in recent reforms to existing civil codes (Law
26.994/2014, Article 558), which do not distinguish between a family constituted by natural ties,
AHRT, or adoption 22. Nevertheless, in these legal systems, lawmakers can legislate on the civil
status of the individuals, relationships, and parentage. Then, a substantial responsibility lies at
12
EUROPEAN COURT OF HUMAN RIGHTS (2014).
BRACKEN (2020), pp. 204-210; EMALDI (2018), pp. 75-99; FENTON-GLYNN, (2021), pp. 220-254; MARINELLI (2020), pp. 37-38;
FENTON-GLYNN & SCHERPE (2019), pp. 562-563.
14
European Court of Human Rights, Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship
between a child born through a gestational surrogacy arrangement abroad and the intended mother, Request no. P16-2018-001, April
10, 2019
15
BRACKEN (2020), p. 207.
16
Guideline October 5, 2010.
17
Act 2008.
18
Children's Act 38 of 2005.
19
FENTON-GLYNN & SCHERPE (2019), pp. 552-553.
20
Family Code of the Russian Federation, art. 51-52.
21
“Artículo 42. La familia es el núcleo fundamental de la sociedad. Se constituye por vínculos naturales o jurídicos, por la decisión libre
de un hombre y una mujer de contraer matrimonio o por la voluntad responsable de conformarla. El Estado y la sociedad garantizan
la protección integral de la familia (…).”
22
“Artículo 558. Fuentes de la filiación. Igualdad de efectos. La filiación puede tener lugar por naturaleza, mediante técnicas de
reproducción humana asistida, o por adopción.
La filiación por adopción plena, por naturaleza o por técnicas de reproducción humana asistida, matrimonial y extramatrimonial,
surten los mismos efectos, conforme a las disposiciones de este Código”.
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lawmakers’ hands in terms of allowing or preventing the legal recognition of families formed
through surrogate motherhood, in addition to providing legal certainty to these families.
Undoubtedly, the law must intervene to avoid further discriminatory treatment and injustice.
What are the scope and limits of legal intervention in surrogacy? Undoubtedly, surrogacy
has important implications concerning the principle of legality in terms of the compatibility of
surrogate motherhood with the domestic public order and legal certainty, which is essential for
the legal parent-child relationship that derives from it to acquire durability and assurance in its
legal life.
Because it is indispensable that the purpose of surrogacy materialises, in this case, the
birth of the child, we found that different rights arise both for the surrogate mother and the
intended parent(s). Thus, the law must establish the corresponding limits in pursuit of legal
security for all participants. If there is an obligation to transfer rights, the surrogate mother is
bound to such a commitment favouring the intended parent(s). However, there are times when
the surrogate mother is not the holder of the rights, for example, a right to genetic material. In
‘traditional or genetic surrogacy’ or ‘gestational surrogacy,’ the said right might belong to the
surrogate mother, the intended parent(s), or a third party, depending on who provided the
genetic material 23. Thus, verifying a transfer of rights is not always required.
1.1. Surrogate mothers
Debates around surrogate mothers have been gaining notoriety for quite some time, and
the potential exploitation of women and their bodies for surrogacy has been criticised 24. From
this perspective, surrogate motherhood can become a potential threat when exercising
autonomy and decision-making 25 and in terms of the right to life, physical integrity, mental
health, and dignity of women 26. It is not difficult to understand that the rights of surrogate
mothers exist before they enter into surrogacy agreements; thus, such an agreement can never
be to the detriment of women’s rights, namely, in this case, the right to freedom of choice.
However, there is a deeper problem of social injustice that should be noted: In countries where
entering into surrogacy agreements in return for payment is permitted, which generally tend to
be developing countries, the women that sign such contracts are underprivileged women, whose
freedom in decision-making can be easily affected by the realities of their extreme vulnerability
and dependency. These unequal positions make surrogacy agreements cumbersome when
imposing legal obligations and constrictions, turning surrogate mothers into objects of
exploitation to serve the interests of intended parents and actors in a growing and emerging
market that exposes these women to concerning health risks 27. However, countries that were
previously favourite destinations for reproductive tourism, such as India and Thailand, have
shifted from free markets to much stricter legislation in recent years 28. The current concern is
that this market has moved to other places, especially areas with no regulation, spreading the
problem to places where it did not exist.
The possibility of exploitation is that one party might take unfair advantage of the other
because the costs and benefits are not fairly distributed between the parties 29. However,
exploitation does not always occur; thus, each case must be analysed individually to avoid
generalisations, particularly when examining the difference between altruist and commercial
surrogate motherhood. Beyond that, it depends on counter-intuitive reasoning because most
23
CROCKIN et al. (2020), pp. 908-909.
SHALEV et al. (2016), p. 9.
25
SHALEV et al. (2016), p. 5.
26
LAMBA et al. (2018), pp. 646-653; SHALEV et al. (2016), p. 5.
27
DEL SAVIO & CAVALIERE (2016), p. 88; EMALDI (2018), p. 79; FELDMAN (2018), pp. 13-14; JOSEPH et al. (2018), p. 21; MAMO
(2018), pp. 27-28; MARINELLI (2020), p. 36; SALAMA et al. (2018), p. 1284; SHALEV et al. (2016), pp. 5-6.
28
Act 47 of 2021; Protection of a Child Born by Medically Assisted Reproductive Technology Act, B.E. 2558 (2015).
29
FRATI et al. (2021), p. 4.
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perceptions collected from the research feedback indicated some bias intending to view
surrogate mothers as always disadvantaged, even when this was not the case.
1.2. Intended parents
The intended parent or parents wish to have a child either because they cannot or simply
because they prefer to have a child by means other than the natural one and thus resort to
seeking help from a woman who agrees to enter into an agreement. This agreement states that
the woman must bear a child and, after giving birth, must give the child to the intended parents,
surrendering all her rights over the child in favour of the intended parents. The use of the
terminology’ parent or intended parent’ is already frequent in academic literature; however, in
other languages, such as Spanish, variants can be found, for example, ‘contracting party’.
Regarding the rights of the intended parent(s), although procreative or reproductive
freedom is recognised in theory, an understanding of the freedom of choice cannot yet be
confirmed in terms of whether to have children, the number of children that one can have and
in what period of time, in practice 30. Any of these rights are actually granted regardless of the
individuals sexual orientation, either single or living with a partner 31, since most of the time they
are denied.
Surrogate motherhood is a valid option for same-sex couples, whether comprising men or
women, although the latter is a less frequent scenario. Surrogate motherhood for couples
consisting of two women is beyond the scope of the present research, even for single women,
since in such cases, the intended parent(s) only needs to find a sperm donor. For these couples,
one intended parent can provide the egg and the other the womb. The current debate
surrounding surrogate motherhood is more closely related to male same-sex couples.
Homosexual men, whether single or living with a partner, cannot have biological children
without the help of a donor who can provide her eggs and fertilise them via in vitro fertilisation
(IVF) or a surrogate mother who agrees to bear a child. The literature has used the term
‘dysfertile’ to refer to couples and single men about people who cannot have a biological child
without the help of a third party. Dysfertile people do not have a physical impediment to
procreate but, rather, a relationship problem 32.
If heterosexual couples with fertility problems or female same-sex couples have the
option of having a child using assisted reproduction, it is only fair for homosexual men to be
allowed the same on their terms 33; however, this is not prevalent. This differential treatment
leads to a legal inequality without an objective, apparent justification. Feminist and queer
theories offer various concepts essential to understanding surrogate motherhood as a valid
option for homosexual men who wish to have biological children. Some feminists argue that
allowing surrogate motherhood means allowing patriarchal control over female bodies 34. There
is no consensus among feminists, insofar as some think that queer kinship may offer alternative
models that allow for the expansion of notions of family beyond the patriarchal,
heteronormative, and traditional kinship grammars 35. Among these concepts, we have
identified and will now explain the following: ‘reproductive awareness’, ‘procreative freedom’,
‘reproductive rights’ and ‘reproductive justice’.
30
PIERSANTI et al. (2021), p. 2.
SMIETANA (2018), p. 107.
32
IKEMOTO (1996), pp. 1007-1061; RUSSELL (2018), p. 136.
33
RUSSELL (2018), p. 138.
34
FELDMAN (2018), p. 14; MARKENS (2012), pp. 1746-1747; TYSON (2020), pp. 328-350.
35
CHENEY (2021), p. 12; GUNNARSSON (2018), pp. 73-74; JACOBSON (2018), pp. 15-16; MAMO (2018), pp. 24-32; SMIETANA (2018),
pp. 101-111; SUDENKAARNE (2018), pp. 117-125.
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1.2.1. Reproductive awareness
Reproductive awareness refers to individuals’ self-awareness of being homosexual and
simultaneously capable of conceiving a human life. Individuals develop this form of awareness
as part of their reproductive decision-making; however, this awareness also occurs at a collective
level. The reproductive awareness of homosexual men must be understood within a historical
context in which the same individuals have been excluded from biological reproduction and
social reproduction. Approximately two decades ago, openly presenting as a homosexual ceased
being considered incompatible with the development of reproductive aspirations in a growing
number of places. Thus, the concept of reproductive awareness in homosexual men serves to
describe the reproductive aspirations of people who were, not so long ago, denied the possibility
of having such ambitions. This shift leads to a change in the aspirations and the awareness of
both individuals and entire societies and sees the entrance of queer individuals in a reproductive
field previously delimited by heteronormativity 36. The change in the reproductive awareness of
homosexual men assumes that these men can, on the one hand, recover their fertility and, on
the other hand, recover their social reproduction 37.
1.2.2. Procreative freedom
Russell 38, paraphrasing Dorothy Roberts 39, argued that procreative freedom, even more
so than biological reproduction, refers to the natural creation of family conformation, affective
ties, and parentage, which may or may not be biological.
1.2.3. Reproductive rights
Reproductive rights are based on recognising the human rights of all couples and
individuals to freely and responsibly decide the number, cadence, and timing of having children,
have the education and means to do so and reach the highest level of reproductive health
quality 40.
The first enumeration of reproductive rights appears in Article 16 of the Convention on
the Elimination of All Forms of Discrimination against Women (United Nations General
Assembly, 1979) 41. Among these rights, the consulted authors have emphasised and interpreted
different aspects, which can be classified as follows:
36
SMIETANA (2018), p. 103.
PRALAT (2021), p. 290; SMIETANA (2018), p. 109.
38
RUSSELL (2018), p. 138.
39
ROBERTS (1999).
40
STARRS et al. (2018), p. 2645.
41
“Article 16.
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and
family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases
the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information,
education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar
institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition
of property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to
specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory”.
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a. the right to decide the number and cadence of children freely and responsibly
and to have access to information, education, and the means to exercise these
rights, including information and advice on family planning42;
b. the right to parenthood 43 or the right to become parents and pursue
parenthood 44;
c. the right to fertility 45;
d. the right to reproduce 46;
e. the right to reproductive choice or being able to choose 47 and
f. the right to sexual and reproductive health and universal access to sexual and
reproductive health rights 48.
Along with these reproductive rights, authors such as Imaz 49, Mamo 50, Starrs et al. 51, and
Emaldi 52 list other rights that belong, specifically, to same-sex couples and can now be used to
contextualise the topic of this study:
a. the right to get married and start a family and
b. the right of same-sex couples to adopt.
Emaldi adds the right to procreate, which seems reserved for people who want to have a
child with a genetic connection 53; however, it would exclude those who could not contribute
their genetic material to have a child. It should also be noted that Emaldi agrees with the criteria
applied by the ECHR in cases related to surrogacy, especially with the requirement of a genetic
connection between the intended parents and the child 54.
1.2.4. Reproductive justice
The fundamental idea of justice is that all individuals are treated the same; from this
starting point, it is immoral to treat specific groups unless there are ethically relevant differences
between them. The principle of justice must be reconsidered in all discussions regarding
healthcare priorities 55.
Reproductive justice is a frame of reference common to all frameworks on reproductive
rights 56. Reproductive justice as a frame of reference encourages attention towards the right to
reproductive choice and endemic social, political, and economic inequalities among different
communities that shape the capacities of individuals to have access to a good life 57. Moreover,
reproductive justice, beyond the scope of reproductive rights, focuses on groups or populations
that are more vulnerable to the risk of being denied reproductive rights 58. To be more precise,
reproductive justice articulates the fundamental nature of reproductive freedom in favourable
political and moral terms as a social justice matter 59.
42
PARKER (2020), p. 5.
IMAZ (2017), p. 7.
44
IMAZ (2017), p. 11.
45
KAWWASS et al. (2021), pp. 29-42.
46
MAMO (2018), p. 25.
47
PARKER, (2020), p. 4.
48
STARRS et al. (2018), pp. 2642-2692.
49
IMAZ (2017), pp. 5-12.
50
MAMO (2018), pp. 24-32.
51
STARRS et al. (2018), pp. 2642-2692.
52
EMALDI (2018), pp. 75-99.
53
EMALDI (2018), pp. 94-96.
54
EMALDI (2018), pp. 75-99.
55
GUNNARSSON (2018), p. 70.
56
PARKER (2020), p. 4.
57
STUVØY (2018), pp. 39-40.
58
PARKER (2020), p. 5.
59
PARKER (2020), p. 7; JACOBSON (2018), p. 16; STARRS et al. (2018), p. 2646.
43
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1.3. The child
Scholars such as Joseph, Rafanello, Morris, and Fleming include the child born from
surrogate motherhood within the surrogacy relationship, referring to the relationship, not as a
dual one, as mentioned earlier, but as a triad 60.
Concerning this issue, some of the consulted authors refer to the rights of the child born
through surrogacy. For example, researchers such as Shalev et al. argued that this AHRT casts
the child as a commercial product in the market, leaving the child in a vulnerable situation
wherein its fundamental rights are left unprotected 61. Taking potential developments in
biomedicine into account, the intended parents could decide on genetic selection and modifying
human embryos. This possibility raises serious concerns regarding the moral limits of
reproductive markets and the impact of new life technologies on the future of humanity and the
nature of humankind itself 62. In practice, surrogate motherhood does not have a uniform legal
framework on a global scale. Then, countries receiving children born via surrogate motherhood
abroad, such as member states of the European Union, have a narrow margin of appreciation at
a domestic level. Such states have had to recognise the legal parent-child relationship between
children and intended parents genetically connected, considering, in any case, the indisputable
prevalence of the primary interest of the child above the State’s interest 63.
Regarding recognising the non-genetically connected children, the State may decide to
adopt measures other than immediate recognition if rapid and effective 64. In general, the view
of the receiving countries has been guarantee-based and focused on protecting the child’s rights
in terms of their rights to privacy, family life, and personal identity 65. Other child rights have also
been discussed, such as the right to economic aid in case of the separation of the intended
parents, the right to family relationships, including having legally recognised grandparents, and
inheritance rights. These legal protections have been included in the legislation of different
countries, such as Italy 66. Regarding the right to know the genetic or biological origins of the
person, there is no widespread recognition. Only in England, Israel, Russia, and South Africa, the
law expressly states that children born through surrogacy can access their origin when they are
18 years old 67. In Italy, for example, the right to know the genetic or biological origins is only
provided in the case of adoption; there is no legislation regarding children born by assisted
reproduction or surrogacy 68.
It is necessary to determine the rights and obligations of each party in a surrogacy
relationship in a detailed manner. To do so, the different legislations must ensure that surrogacy
agreements are allowed as a method of avoiding the exploitation of surrogate mothers,
particularly in the cases of cross-border surrogate motherhood 69.
The growing significance of certain extrajudicial elements in the legal system cannot be
set aside (that is, those coming from moral and ethical views). In the present research, surrogacy
has been primarily positioned within the legal field; however, there are other fields, such as
bioethics, which can also be placed. It is worth analysing the same in later studies.
60
JOSEPH et al. (2018), pp. 21-22.
SHALEV et al. (2016), pp. 6-7.
62
SHALEV et al. (2016), p. 7.
63
BRACKEN (2020), pp. 204-210; FENTON-GLYNN (2021), pp. 227-229; MARINELLI (2020), p. 37; PIERSANTI et al. (2021), pp. 10-11;
FENTON-GLYNN and SCHERPE (2019), pp. 562-564.
64
European Court of Human Rights [Grand Chamber], Request no. P16-2018-001, April 10, 2019.
65
MARINELLI (2020), pp. 38-39; PIERSANTI et al. (2021), pp. 10-11; SHALEV et al. (2016), p. 7.
66
Law 184.
67
FENTON-GLYNN & SCHERPE (2019), pp. 536-537.
68
BUSATTA & PENASA (2021), pp. 201-208.
69
SUDENKAARNE (2018), p. 122.
61
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2. Parenthood for same-sex couples through assisted reproduction
Generally, same-sex couples prefer IVF and surrogate motherhood over adoption because
they wish to raise a child from birth. This choice allows them to have more control over the
process, to have a genetically connected child, and avoid a lengthy and arduous adoption
process that does not offer a definite outcome. Moreover, many countries still forbid adoption
for homosexual individuals, regardless of whether these individuals are single or have a
partner 70.
The first issue concerns male same-sex couples in countries where surrogate motherhood
is forbidden rather than restricted. In such countries, these couples have fewer options than
heterosexual couples about becoming parents, which poses an inequity or imbalance in terms
of the burdens and impositions of the law for such couples. Israel’s Supreme Court held that
excluding single men and male same-sex couples connected genetically with the newborn from
surrogacy agreements was unconstitutional 71.
From a legal perspective, maternity has historically been determined through pregnancy
or adoption. In contrast, paternity has been assumed by marriage to the mother, through the
voluntary recognition of paternity by a man, or being proven in some circumstances through
legal measures, such as DNA tests. Following the advent of IVF and the donation of gametes or
embryos, the three essential elements of parenthood, namely, genetics, pregnancy, and
intention, can reside in more than one individual 72. The existence of a genetic bond with the
child in granting recognition to the legal parent-child relationship had previously been assumed;
however, this changed when the intended mother (without a genetic connection to the child)
and her partner could become parents. Nevertheless, there are still problems when it comes to
recognising parenthood for homosexual men. There is a strong consensus among experts in
reproductive rights that homosexual men, either single or with a couple, must provide their
sperm. Otherwise, they will not have a genetic connection with the child and must undergo a
formal adoption process after the child is born 73. Gay single men and male same-sex couples
continue to be second-class citizens before many legal statutes 74.
3. Gender asymmetry between male and female same-sex couples in starting a family
There are laws in countries such as Spain 75, and court orders in Italy 76 and the United
States 77, allowing men and women, whether single or as a couple (heterosexual or homosexual),
access to parenthood, giving all individuals equal formal treatment. However, one inequality
remains. Women (alone or as a couple) can easily access artificial insemination or IVF, whereas
men (alone or as a couple) have no option but to find an egg donor and a surrogate mother to
have a biological child. Men face a legal barrier from the onset, as is the case in Spain or Italy, or
a costly process, as is the case in the United States, in countries where surrogacy is allowed,
where only a few people can afford this kind of treatment 78.
Professor Emaldi refers to surrogacy as an option for infertile persons and men who
cannot have a child due to their inability to gestate an embryo. It does not refer to surrogacy to
female same-sex couples or women without a male partner. Emaldi shows that the problem of
access to AHRT, including surrogacy, is primarily for men. Her concern is focused on male samesex couples and men without a female partner. She regards surrogacy as a valid option for male
70
LINDHEIM et al. (2019), p. 2.
Israel’s Supreme Court, HC 781/15, February 27, 2020.
72
CROCKIN et al. (2020), p. 913.
73
CROCKIN et al. (2020), 914; MARINELLI (2020), pp. 39-41.
74
FENTON-GLYNN (2021), p. 249.
75
Law 13/2005.
76
Ruling 12962/2016.
77
Supreme Court of Nebraska, Stewart v. Heineman, April 7, 2017.
78
IMAZ (2017), p. 8; LINDHEIM et al. (2019), p. 2; MARINELLI (2020), pp. 39-41.
71
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same-sex couples to start a family, mainly if they are married, because of the amendment to the
Spanish Civil Code introduced by Law 13/2005 79 regarding the right of same-sex marriage and
other rights 80.
In South America—excluding Brazil, where some medical guides, such as temporary
legislation, have been adopted, and Uruguay, where there is legislation on the matter—
Argentina, Bolivia, Chile, Ecuador, Paraguay, Peru, and Venezuela do not yet have regulations
regarding surrogate motherhood. Moreover, although Argentina (Law 26.862/2013)81,
Colombia (Law 1953/2019) 82, and Peru (Law 26.842/1997, Article 7) 83 have legislation on AHRT,
these countries lack legislation on surrogacy. Torres, Shapiro, and Mackey noted that beyond
the most difficult challenges of global infertility, the new structures of the family make this topic
even more complex. Same-sex marriage is now legal in 31 countries, including six countries in
South America, namely, Argentina, Brazil, Chile, Colombia, Ecuador, and Uruguay. These
countries, except for Ecuador, offer surrogacy and adoption options to same-sex couples who
wish to start a family. This trend will likely impact future legal developments on the regulations
of surrogacy in the region.
On the other hand, in countries where surrogate motherhood is allowed, and a thriving
cross-border reproductive market has flourished, like the United States, there is a stratification
of policies and reproduction services, fostering reproduction in some populations while disabling
or discouraging reproduction in others 84. This stratification can be seen mainly in the
recruitment of clients for infertility treatment, where discrimination patterns can be observed
from an economic perspective and a racial one in terms of access to certain services 85.
Nonetheless, the costs are still the most significant barriers to accessing infertility support.
However, the public health systems’ universal coverage of fertility services would eliminate such
obstacles for those who need such services, especially those in more vulnerable situations 86.
4. Male same-sex couples and surrogate motherhood: the need for equity and justice
LGBTQIA+ (lesbians, gays, bisexuals, transgender, queer, intersex, asexual, and others)
access to AHRT is a topic that intersects with and takes shape within broader and multifaceted
issues related to reproductive rights and justice 87.
For male same-sex couples, it is impossible to bear a child through traditional
reproduction, they cannot gestate the child by themselves, but need the help of a surrogate
mother. This inherent limitation constitutes a matter of global health, because no male samesex couple would be able to procreate their own children except with the help of AHRT.
However, this is not all: Male same-sex couples who enjoy greater economic well-being are, in
general, those who can access procedures such as surrogacy abroad, meanwhile male same-sex
couples with low economic income cannot access this type of procedures due to their high costs.
This produces a situation not only of inequality between male same-sex couples, but also a
serious reinforcement of social inequity within countries.
79
«Artículo único. Modificación del Código Civil en materia de derecho a contraer matrimonio.
El Código Civil se modifica en los siguientes términos:
Uno. Se añade un segundo párrafo al artículo 44, con la siguiente redacción:
“El matrimonio tendrá los mismos requisitos y efectos cuando ambos contrayentes sean del mismo o de diferente sexo”.»
80
EMALDI (2018), pp. 75-99.
81
“Artículo 1. Objeto. La presente ley tiene por objeto garantizar el acceso integral a los procedimientos y técnicas médicoasistenciales de reproducción médicamente asistida”.
82
“Artículo 1. Objeto. La presente ley tiene como objeto establecer los lineamientos para el desarrollo de la política pública de
prevención de la infertilidad y su tratamiento dentro de los parámetros de salud reproductiva”.
83
“Artículo 7. Toda persona tiene derecho a recurrir al tratamiento de su infertilidad, así como a procrear mediante el uso de técnicas
de reproducción asistida, siempre que la condición de madre genética y de madre gestante recaiga sobre la misma persona. Para la
aplicación de técnicas de reproducción asistida, se requiere del consentimiento previo y por escrito de los padres biológicos”.
84
JACOBSON (2020), pp. 42-47.
85
JACOBSON (2018), p. 16; SMIETANA (2018), p. 108.
86
KAWWASS et al. (2021), p. 40; LINDHEIM et al. (2019), p. 8; SMIETANA (2018), p. 109; STARRS et al. (2018), p. 2679.
87
JACOBSON (2018), p. 16; SMIETANA (2018), p. 109; STARRS et al. (2018), p. 2643.
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The women who offer to help foreign couples as surrogate mothers tend to live in
developing countries and have limited resources; surrogate motherhood is a source of income.
Consequently, surrogacy inevitably becomes a generator of more significant risks for the life and
health of surrogate women and even for the children born through such procedures. Surrogate
mothers, on many occasions, must face the pregnancy or its consequences alone, because the
intended parents are far away. In these cases, surrogacy become a source of substantial
injustices in the countries where these women live and can be categorised as a problem
concerning health and global justice.
Any bill to regulate surrogate motherhood should be aimed at progressively restricting
surrogacy abroad, but first, domestic surrogacy should be legalized, emphasizing the protection
of the rights of surrogate mothers and children. International regulation should be left to an
international convention. In fact, at the Hague Conference on Private International Law, a draft
for an international convention on surrogate motherhood is being discussed. Beyond allowing
only altruistic surrogacy or also allowing commercial surrogacy, single people (especially men),
couples with fertility problems, and either the same or opposite sex-couples, should be
guaranteed access to surrogate motherhood through a public health policy. Regulation is the
only way to truly prevent inequity and justice issues that have been raised by inefficient
regulation of surrogate motherhood.
There is no doubt that the law can decisively influence the professionals’ decisions and
indicate the best choice for the prospective parents if a variety of services, treatments, and
procedures, including those for surrogacy, are covered by public health plans or programmes.
However, this is not enough if the law in itself does not fall within the framework of equity and
justice. It must not be forgotten that the reproductive choices of those who resort to surrogacy
are based on other people’s lives, which can generate or increase structural and interpersonal
inequities concerning people and population groups 88. People, when making choices, must
consider not only themselves but also others and attempt to adhere to equity and justice
criteria 89. Then, a justice approach is required, based on reproductive rights, the responsibility
of those who choose surrogacy, and the consequences of such a choice for surrogate mothers.
Conclusions
Harmonising different legal systems is considerably tricky, most explicitly owing to the
lack of binding obligations for States. These efforts must be carried out at not only a domestic
level in each State but also at a global scale to provide regulation through international treaties
and conventions and domestic laws in the States and thus avoid the unfortunate consequences
that surrogacy can lead to across the world.
Notably, we face a problem that affects thousands of people on the planet: infertility,
regardless of race, wealth, or origin. However, this problem can be mitigated by allowing people
to access fertility services through public health programmes. Nevertheless, this is not our only
contemporary problem. Owing to the mobility of people to bypass the restrictions in their
countries to enter into surrogacy agreements in foreign countries where this practice is allowed
or where there is no regulation regarding surrogacy, a growing and increasingly concerning
phenomenon has emerged: cross-border surrogacy. Prohibitionist laws in countries where
people from said countries travel abroad to enter into surrogacy agreements leave the child
vulnerable. At the same time, the legal relationship with the intended parents is defined, even
if the primary interest of the child prevails, owing to the long and complicated procedures of
recognising the legal parent-child relationship; such cases can result in unpredictable
consequences at times. Hence, the prohibitionist direction is not the solution to the problems
surrounding surrogacy at present.
88
89
MAMO (2018), pp. 24-32.
MAMO (2018), pp. 24-32; SMIETANA (2018), pp. 101-111.
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Cross-border surrogacy has pushed the law to its limits. Although some countries have
forbidden surrogacy domestically, they have had to admit surrogacy agreements by their citizens
abroad that have resulted in the birth of children precisely to ensure the best interest of minors
who arrive in the countries of origin of the intended parents. But cross-border surrogacy has
also left deep problems of injustice in its wake, leaving surrogate mothers helpless, many of
whom live in poverty in developing countries. The absence of regulations or the flexible and
permissive laws found in these countries leaves surrogate mothers and children unprotected. It
is necessary to adopt an international convention that, at the same time, guarantees the best
interest of the children resulting from surrogacy agreements and protects the rights of surrogate
mothers, among others, to give their consent and to revoke it.
Undoubtedly, one of the biggest obstacles that the regulation of surrogacy has
encountered has been the legalisation of commercial surrogacy. However, governments have
moved towards the regulation of altruistic and compensated surrogacy, requiring intended
parents, for example, to take out an insurance policy in favour of the surrogate mother. The
intended parents must also take care of medical expenses (before and after birth) and legal
expenses for the conclusion of the surrogacy agreement, compensating the surrogate mother
for the possible expenses and inconvenience produced during pregnancy and postpartum,
without this becoming remuneration.
Finally, recognising and guaranteeing reproductive rights, particularly for vulnerable
people, and paying attention to the demands of justice and equity are the first steps towards
reducing the structural and interpersonal inequities involved in surrogacy practices. In
conclusion, the best solution to considerably influences the complex mechanism through which
surrogacy occurs is regulation.
Acknowledgements
We would like to thanks Universidad Cooperativa de Colombia for funding our project and
also the contributions of professors Mauricio Pulecio Pimentel and Cesar Sanchez-Avella (R.I.P.).
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Revista Ius et Praxis, Año 28, Nº 3, 2022
Carlos Jesús Molina-Ricaurte ı Jaime Elías Torres Buelvas
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