Written by Francesca Nardi, a Canadian and U.S. trained lawyer specializing in human rights and global health, with a particular focus on reproductive technologies, Laura Dragnic, a Chilean lawyer dedicated to advancing social and reproductive justice. and Guillermina Pappier, an Argentinian lawyer specializing in reproductive rights, and biotechnology. The authors are associated with the O’Neill Institute for National and Global Health Law, Center for Health and Human Rights at the Georgetown University Law Center. 

Surrogacy has long been a hot-button issue for ethicists and policymakers alike. Despite accusations from opponents that surrogacy constitutes the “sale of children” and exploits women, there has been a steady uptick in the number of people using surrogacy to start or grow their families, and shows no prospect of slowing down.

Gestational surrogacy, or the practice of using a genetically unrelated third person to carry a pregnancy, has been highly criticized for being “unregulated” and a “wild-west” industry. In recent years, however, a number of countries around the world and states within the United States have passed legislation that regulates or restricts the practice.

This week, Chile joined these countries when a bi-partisan bill was introduced by the Chilean congress that would prohibit gestational surrogacy in Chile, and would introduce civil and criminal penalties, including nullifying any contract for surrogacy (leaving all parties and their intended children with no legal protections), and criminal penalties for the parties involved in surrogacy and any agency or clinic that promotes the practice.

In addition to the sweeping nature of the bill in Chile, it exemplifies a growing phenomenon of efforts to limit or regulate surrogacy that extend across the political spectrum, as the bill has support from members of all of Chile’s political parties.

Previously, many of the efforts to limit access to other reproductive technologies such as IVF in the United States had come from conservative actors, many aligned with the anti-abortion agenda who oppose the creation (and potential destruction) of IVF embryos. While some right-wing governments have led the charge to take extreme action to prohibit surrogacy, including through extreme prohibitions in countries like Italy, more generally progressive jurisdictions on reproductive rights issues have increasingly taken action to restrict it (including Spain and Sweden), demonstrating that there are polarizing elements of surrogacy beyond the creation of embryos that spark concern across party lines. Further, some countries that had historically more permissive surrogacy laws have now revised their legislation, in some cases enacting highly restrictive laws.

The Chilean bill highlights not only the emerging bi-partisan nature of concerns about surrogacy, but also many of the traditional arguments presented in opposition, alleging for example that surrogacy exploits and violates the dignity of women, “confuses” concepts of parenthood and impacts the personal identity of resulting children, constitutes the trafficking and sale of children, and constitutes a form of “slavery.”

While these arguments are hardly new, the Chilean regulation attempts to address them by incredibly broad prohibitions, including for example “the transfer of eggs for reproductive purposes to a health facility under any circumstances.” This kind of language can risk sweeping many other assisted reproductive procedures into the prohibition envisioned by this bill. This could include not just certain IVF protocols, particularly those involving donor eggs (something required by many couples struggling with infertility), but also reciprocal IVF- a technique used by lesbian couples whereby one partner is inseminated with the other partner’s embryo, and carries the child to term.

Chile currently has no specific law governing assisted reproductive techniques. While some administrative regulations exist, they do not comprehensively cover the various methods available to patients in Chile. Instead of fostering a nuanced and informed discussion, this new bill takes a blunt and exclusionary moral stance on a highly complex issue that demands thorough debate and thoughtful regulation.

Additionally, provisions of this bill could conflict with Chile’s regional and international human rights obligations. For instance, it may infringe on the right to private and family life, which includes the right to become a biological parent- protected under Article 11 of the ACHR and Article 17 of the ICCPR. This is particularly relevant for individuals who cannot become parents without reproductive assistance, including same-sex couples, single individuals, and heterosexual couples with health conditions that make them unable to have children without medical interventions. Given that Chile has made significant progress on LGBTQI+ rights, particularly following the Inter-American Court’s decision in the Atala Riffo Case, the bill could represent a notable setback, limiting the possibility of parenthood for same-sex couples.

Furthermore, the proposed legislation introduces significant gender disparities. While sperm donation is neither prohibited nor regulated in Chile, the bill specifically targets the transfer of female gametes, leaving male gametes unaffected and unregulated. This creates an unjustifiable gender disparity in the regulation of reproductive technologies, undermining principles of equality and non-discrimination. and providing a potential basis for an unconstitutionality claim.

The bill also explicitly considers surrogacy as inherently contrary to the interests of the child, contradicting precedents set by Chilean courts, where family courts have recognized parental rights in surrogacy cases based on the best interests of the child. Additionally, this legal gap places children born through assisted reproduction, surrogates, and parents in a vulnerable position, as their legal status could be called into question if these procedures are prohibited.

In this context, it is striking that legislative efforts focus on prohibiting specific practices rather than developing a comprehensive, rights-based regulatory framework for assisted reproductive technologies.

This bill exemplifies the kind of overinclusive legislative language that can put critical access to assisted reproductive technologies at risk, even when the stated goal of legislators is to target only surrogacy in their regulations. In a global context where assisted reproductive technologies are increasingly coming under attack, legislators should adopt a nuanced and targeted approach to regulating surrogacy, ensuring that they are not inadvertently restricting critical access to other technologies that patients need.