Surrogacy Insights

Until early 2024, Argentina was at the forefront of the global surrogacy landscape, offering a unique combination of legal provisions and emerging trends that shaped the practice within its borders.  Buenos Aires, the vibrant capital city, played a central role as an autonomous entity within the country’s legal framework, making it a key hub for surrogacy arrangements.

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.

Recent Restrictions on Foreign Surrogacy

In early 2024, Susana Medina, a Supreme Court Justice in Argentina and President of the International Association of Women Judges (IAWJ), held a private meeting with Pope Francis.  Following the meeting, Medina expressed her opinion that all contracts signed by foreigners who had never visited Argentina before entering such an arrangement should be declared void.  She also proposed that all marketing for surrogacy and surrogates be prohibited and that intermediaries involved in these arrangements be pursued and punished.

Shortly thereafter, the process of obtaining a birth certificate for children born via surrogacy became significantly more complicated and time-consuming.  This coincided with a scandal involving an unethical surrogacy operation in Argentina, which led to allegations of human trafficking.  One of the 14 women involved was found to be widowed, suffering from severe health issues, and without access to necessary medical care.

By June 2024, new restrictions were in place: no child born via surrogacy was permitted to leave Buenos Aires without an Argentine birth certificate.  Border control authorities were instructed to turn away anyone attempting to travel with a newborn without this documentation.

A new policy now requires all surrogacy cases to obtain prior court approval, a process that could take at least four months.   For births occurring after July 22, 2024, a birth certificate will only be issued with the names of the surrogate and intended father.  After the birth, a second court appearance is necessary to obtain approval to have the surrogate’s name removed and a new birth certificate issued with the names fo the Intended Parents, a process that could take months.

Local attorneys and agencies have filed various complaints and lawsuits in an effort to resolve these issues, but it is expected that these legal battles could take years to conclude.

The message is clear: Argentina is no longer welcoming to foreigners considering surrogacy.