Berenice Cerra & Guillermina Pappier[1]
In Argentina, the state does not regulate the practice of gestational surrogacy. Courts have tended to fill the void, approving altruistic and non-compensated gestational arrangements, particularly for heterosexual couples experiencing infertility. For the last decade, claimants have enjoyed high success rates, primarily due to the judiciary’s application of international human rights law. However, in October 2024, the Argentine Supreme Court issued a ruling that marked a significant shift in its stance on surrogacy.
The Court rejected the paternity claim of a same-sex male couple who had a child through surrogacy despite the surrogate’s clear and consistent intention not to assume parental rights or responsibilities. Along with the intended parents, she sought legal recognition of the couple as the child’s sole parents, ensuring both their names appeared on the birth certificate. However, the Court reaffirmed that, under current Argentine law, the birth mother (that is the surrogate) must be a legally recognized as the parent, emphasizing that surrogacy remains unregulated in the country’s legal framework. This ruling has resulted in a problematic scenario characterized by a lack of judicial certainty that limits certain previously guaranteed rights.
The recent ruling overlooked three critical issues that warrant attention. First, by strictly interpreting the provisions of the Argentinian Civil and Commercial Code on filiation by assisted human reproduction techniques, the Court did not consider the lived realities for same-sex couples, which jeopardizes their enjoyment of substantive equality. While the same legal standard is applied to all cases, this formal approach disproportionately impacts same-sex male couples, who necessarily rely on surrogacy to become biological parents. Heterosexual couples facing infertility have historically benefited from judicial recognition of their intended parenthood, demonstrating an implicit bias in the legal interpretation. As a result, the ruling not only reinforces existing disparities but also perpetuates discrimination against same-sex couples by denying them the same parental recognition granted to others in similar circumstances.
A second concern is the Court’s failure to consider the rights of the child born from gestational surrogacy. In the case in question, the child had lived with and been raised for years by his same-sex parents. However, the Court determined that not granting legal recognition to the child’s parents did not violate the principle of the child’s best interest; the court failed to apply applicable law in this regard. The Convention on the Rights of the Child (CRC), with constitutional hierarchy in Argentina, enshrines the principle of the child’s best interests, stipulating that in every law, public or private initiative, and in every problematic situation, the child’s best interests must be given preeminent consideration. Article 3 of the CRC states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”.
Therefore, the best interest of the child determination describes a formal process with strict procedural safeguards designed to determine the child’s best interest in critical decisions affecting the child. It should facilitate the appropriate participation of children without discrimination, involve decision-makers with relevant areas of expertise, and balance all relevant factors to evaluate the best option. However, in this case, when the Court interprets this process arbitrarily, even without considering the child’s desire to stay with the parents who raised him, it undermines the fundamental rights of all the parties involved, especially the child’s best interests, privacy, family life, and identity.
Lastly, the limited discussion on procreational will is problematic. The person who gave birth to the child expressed her desire not to become a parent both during the pregnancy and after the child was born. The Inter-American Court of Human Rights, in the case Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica (2012), considers that becoming a parent is part of the right to private life and includes in this case, the decision of whether or not to become a mother or father in the genetic or biological sense. Motherhood is crucial to the free development of a woman’s personality, and the family right is recognized in Art 17 of the American Declaration of Human Rights.
In addition, the right to a private life enshrined in Article 11 of the Convention and the right to personal liberty protected by Article 7 of the same treaty are related to reproductive autonomy and access to reproductive services. The court’s decision, except for the vote of Judge Maqueda, did not consider the decision of the woman not to become a parent. Even before the pregnancy started, the surrogate clearly manifested her decision not to become the mother of the child, and that was the arrangement with the couple. In the first judicial instance, a meeting with all the parties took place, and she clearly expressed that she didn’t want to be the child’s mother. The imposition of motherhood affects women’s rights to private liberty and reproductive autonomy.
In sum, the Argentine Supreme Court’s ruling represents a significant setback for the recognition of surrogacy, in particular for same-sex male couples. By strictly interpreting the provisions of the Civil and Commercial Code, the Court perpetuated gender-based stereotypes, inequality, and discrimination against same-sex parents within the legal framework. The decision fails to adequately consider the lived realities of these families, undermining their rights and the welfare of children raised in such households. Furthermore, the Court’s oversight regarding the intentions of the surrogate and the implications of the ruling on the child’s identity and familial relationships raises serious concerns about adherence to international human rights standards, particularly the Convention on the Rights of the Child. Even when this ruling shows a clear rights regression in Argentina, it is also a chance to ignite a debate regarding surrogacy in Congress, but also a call to attention the need to attend to gender and equity in order to achieve justice.
References
[1] Berenice Cerra, Master in Human Righs and LLM. (she/her), is an international consultant. Originally from Argentina, her work focuses on gender policies, food systems, and international human rights law.
Guillermina Pappier, LL.M. (she/her) is a second-year fellow at the O’Neill Institute for National and Global Health Law. Originally also from Argentina, her work focuses on reproductive health and international human rights law.
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