Surrogacy Insights

Argentina’s role as a surrogacy destination is undergoing intense scrutiny as the country grapples with the consequences of unregulated practices, legal challenges, and ethical dilemmas.  Once considered a key hub for international surrogacy, particularly in Buenos Aires, the nation is now shifting its approach through significant legal and administrative restrictions.

Background to surrogacy in Buenos Aires

In a landmark court case, “Ombudsman of the City of Buenos Aires and Others s/ Amparo – others” Expte- 1861/2017, the judiciary in Buenos Aires set a significant precedent by interpreting existing laws and applying them to surrogacy:

• The child must be born within the Autonomous City of Buenos Aires.
• The surrogate must sign an agreement with a Notary before any treatment. This agreement must include a provision stating that she does not intend to create a child for herself, does not wish to raise the child, and recognizes that the intended parents will create, raise, and be recognized as the child’s parents.
• Similarly, the intended parents must sign the agreement before a Notary, acknowledging their intent to create and raise the child as their own and to be recognized as the child’s parents.

This groundbreaking decision paved the way for legal recognition of parental rights in surrogacy cases, allowing intended parents to have their names entered on the original birth certificate.

However, surrogacy practices often operate in a legal gray area.  Court decisions granting intended parents this right appeared to conflict with the Civil Code, which identifies the gestational mother as the legal parent.   While this ambiguity attracted fertility tourism, it also raised significant concerns about the exploitation of vulnerable women and potential human trafficking.

Tightening Restrictions

In early 2024, the situation began to change. Supreme Court Justice Susana Medina, following a private meeting with Pope Francis, called for stricter measures against foreign surrogacy arrangements. She advocated for declaring contracts void for foreigners with no prior ties to Argentina, prohibiting surrogacy advertising, and pursuing intermediaries involved in such agreements.

Soon after, Buenos Aires authorities began imposing new restrictions.  Birth certificates for children born via surrogacy were frozen in April 2024, leaving dozens of families, including foreign nationals, unable to leave the country with their newborns.  By June 2024, border control authorities were instructed to deny exit without an Argentine birth certificate.

New policies now require court approval for surrogacy cases, a process that could take at least four months.  For births after July 22, 2024, initial birth certificates list the surrogate and intended father.  A second court appearance is necessary to amend the certificate to include only the intended parents, further prolonging the process.

International Headlines and Local Scandals

The challenges of Argentina’s surrogacy landscape were thrust into the spotlight when two Italian citizens were arrested at Buenos Aires Airport while attempting to leave with a baby born via surrogacy. Immigration flagged their case due to irregular documentation, leading to accusations of human trafficking.  This incident coincided with broader investigations into 147 surrogacy cases involving foreign nationals in Buenos Aires.

A separate scandal in Cordoba revealed unethical surrogacy operations involving 14 women, some coerced into arrangements under false pretenses.  One woman was widowed, in poor health, and without access to medical care.  Authorities launched raids on clinics, lawyers, and agencies, further emphasizing the risks of unregulated surrogacy practices.

Argentina: A No-Go for Surrogacy After Supreme Court Ruling

On October 22, 2024, the Supreme Court of Argentina issued a landmark ruling rejecting the legitimacy of surrogacy contracts.  [S., I. N. c/ A., C. L. s/ Impugnación de filiación (CIV 86767/2015/1/RH1)].  It reaffirmed that the gestational mother is the legal parent, regardless of agreements, and deemed surrogacy contracts incompatible with Argentine law. The ruling marked the end of nearly a decade of judicial debate over interpreting the Civil and Commercial Code’s provisions on parentage and surrogacy.

The Court also urged legislators to address the lack of regulation, warning against practices that exploit vulnerable women and commodify children.   Advocates for stricter laws argue that surrogacy should be classified as reproductive exploitation, while some legal experts call for regulated transparency instead of outright prohibition.

A Path Forward?

For intended parents, the process has become fraught with delays and uncertainty.  Local attorneys have filed lawsuits against the new restrictions, but these cases are expected to take years to resolve.  Meanwhile, surrogacy agencies have begun advising foreign nationals to look elsewhere.

Argentina’s new policies send a clear message: the country is no longer welcoming foreigners seeking surrogacy.  As international attention mounts, the future of surrogacy in Argentina remains uncertain, with families, surrogates, and advocates navigating a complex web of legal, ethical, and cultural challenges.

In the meantime, there is a legal path to parenthood.  The surrogate’s name must be listed on the original birth certificate alongside the biological intended father. Lawyers can then file a motion to obtain a new birth certificate, removing the surrogate’s name.  This requires the surrogate to formally renounce her parental rights and consent to the name removal.  However, this process may need to be overseen by the existing adoption laws.

Important Note:  Regardless of whether a child holds a passport issued by another country, they cannot leave Argentina without an Argentinian birth certificate.