This week a bill to regulate surrogate motherhood in Colombia was officially filed. A topic that, like many, is controversial due to the number of interests, rights and challenges that it presents, as an alternative for those who cannot access maternity/paternity through natural means or other assisted fertilization. The Constitutional Court in September 2022 granted the legislator and the Government six months to issue a regulation on this maternity, among others because it is known that it is a common practice and that it is increasing. The proposal states that its objective is to “allow gestational surrogacy with compensation, guaranteeing the protection of the rights to human dignity, autonomy, equality, health, the protection of women and the unborn, and prohibit the practice of surrogacy for profit”. In other words, it is intended to be for altruistic purposes and therefore to be an autonomous decision. However, I wonder: Isn’t it too naive to think that the biggest motive for these practices for pregnant mothers is not the economic factor? Could it be that saying compensation and no payment already ensures that it is not for profit, or is it simply a sophistry? World experience has shown that it is a practice widely carried out with low-income women, which in turn generates phenomena such as reproductive tourism. Something that could undoubtedly happen in Colombia if we take into account that, for example, in the United States and Western Europe, surrogacy ranges between $100/150 thousand dollars, while in Colombia, between $4 thousand/10 thousand dollars (according to offers in classified); that is, in Colombia it is 93.3% cheaper. Faced with women, we ask ourselves if it is another form of exploitation, domination and instrumentalization for human reproduction or if, on the contrary, it is a form of emancipation because it is a free expression of her will, as long as she decides whether or not she wants to assume the consequences of an agreement such as maternity subrogation. Additionally and no less worrisome, this initiative charges the ICBF with the responsibility of verifying and formalizing the contracts in this practice; as if it were not evident that the operational burden of the entity would make it difficult to verify compliance with the agreements; if it is ineffective in relation to its basic functions of guaranteeing the rights of children in our country.
Finally, this should be a discussion that includes all the social actors, feminist collectives, experts in medicine and psychology, the EPS, the Icbf, among others, to guarantee the objectives pursued.
*Lawyer specializing in Constitutional Law and Master of Laws with emphasis in Business and Contract Law.
