While there is currently no specific legislation regarding surrogacy in Colombia, the practice is legal. Understanding the legalization of surrogacy in Colombia requires an examination of the role of the Constitutional Court of Colombia and its landmark ruling on surrogacy in 2019.

What is the Constitutional Court of Colombia?

The Constitutional Court of Colombia serves as the highest tribunal in matters of constitutionality within the Colombian judiciary. Established in 1991 with the adoption of the current Colombian Constitution, the Court plays a pivotal role in safeguarding the supremacy and effectiveness of the Colombian Constitution. Comprising nine magistrates appointed for eight-year terms without the possibility of reappointment, the Court ensures its independence and impartiality through a diverse selection process involving various entities, including the President, Congress, and the judiciary.

One of the primary functions of the Constitutional Court is to review the constitutionality of laws, decrees, and legal acts issued by governmental bodies. Additionally, the Court hears cases involving fundamental rights and freedoms guaranteed by the Constitution, such as human rights violations, equality, and freedom of expression. Its decisions are binding and have the force of law, serving as precedents for future cases.

As the highest tribunal in matters of constitutionality, its rulings are final and must be complied with by all governmental bodies, including Congress, the President, and regional authorities.  While the Constitutional Court’s decisions carry significant weight and are highly respected within Colombia’s legal system, they are subject to legal and constitutional scrutiny and can be subject to debate and criticism, like any judicial decision. However, until they are overturned or modified by the Court itself or through constitutional amendments, its rulings remain binding and enforceable.

The 2009 Court Ruling

The case that the Constitutional Court of Colombia looked at in 2009 regarding surrogacy is known as Sentencia T-968 de 2009.

This landmark ruling addressed the legality and regulation of surrogacy in Colombia, providing important guidelines and principles for surrogacy arrangements.  In its ruling, it urged the legislature to consider regulation of the field. 

The Court emphasized that children born via surrogacy are legally legitimized, citing constitutional article 42-6, which asserts that ‘Children born in marriage or outside of it, adopted or procreated naturally or with scientific assistance, have equal rights and duties.’ This recognition underscores that a child born via surrogacy should be afforded the same rights as any child born in the country, thus affirming that surrogacy is not illegal. Furthermore, this principle highlights that the courts hold the final responsibility in resolving disputes over custody of any child born in Colombia, irrespective of any surrogacy agreement.

The Justices offered guidance for the navigation of surrogacy arrangements in the country.  It is highly advisable to incorporate these recommendations into any surrogacy arrangement or contract.  These guidelines include:

• There should be proof that the surrogate voluntarily participated, such as she was represented by an independent legal counsel. 
• The Justices indicated that they preferred altruistic motives over commercial motives. 
• The parties all received medical and psychological evaluations.
• At least one intended parent must have a biological connection to the child.
• The surrogate’s name should be listed on the original birth certificate.
• The intended mother should have a documented medical need for surrogacy.
• There is no requirement for intended parents to be married or domestic partners.
• The surrogate must have no biological connection to the child she carries.
• The surrogate should be over the age of 18, undergo a psychological evaluation, and have at least one child of her own.
• The agreement should contain a provision obligating the surrogate to receive adequate medical care before, during, and after the pregnancy.
• The agreement should contain a section that states that the surrogate commits to relinquishing the child to the intended parents upon birth and acknowledges that the primary purpose of the arrangement is for her to carry a child for the intended parents and to transfer custody to them subsequently.
• There should be a provision mandating the biological parents to take custody and financial responsibility of the child upon birth.

Same-Sex or Single Parenting

The legal recognition of same-sex parents in Colombia is extended to surrogacy, with the Constitutional Court affirming the rights of all individuals, regardless of sexual orientation, to form families. Discrimination based on gender or sexual orientation is strictly prohibited by law, ensuring equal access to surrogacy for all individuals. Additionally, equal rights are guaranteed to foreigners in Colombia under Article 100 of the Constitution, granting them the same civil rights and guarantees as those enjoyed by citizens. This inclusive approach extends to international surrogacy arrangements, providing a legal framework that promotes equality and non-discrimination in surrogacy practices.

Finalizing Parental Rights

While Colombia lacks a pre-birth order procedure typical in other jurisdictions, it follows a post-birth process to formalize the intended parents’ legal guardianship of the child. Following the birth, the intended parents are required to provide DNA evidence demonstrating at least one of them is biologically related to the child. Subsequently, the surrogate must sign a legal document relinquishing all maternal rights. These documents, along with the DNA testing results, are sufficient to facilitate the removal of the surrogate’s name from the birth certificate and the issuance of a new birth certificate containing the names of the intended parents.

Finally, it is important to complete the civil registration process for both the child and the intended parent(s) to ensure the surrogacy arrangement is legally recognized.

There have been reported cases of bribes being paid to doctors to enter the names of the intended parents instead of the surrogates onto the original birth certificate. This practice is fraudulent and can pose problems if the surrogate disputes custody of the child, leading to legal complications. It is highly recommended that you DO NOT engage in any fraudulent activities and instead follow the legal pathway to establishing your parental rights.

The Child’s Citizenship

Infants automatically receive Colombian citizenship upon birth and are entitled to obtain a Colombian passport. Consequently, intended parents can promptly return home with the child and later initiate the process of transferring citizenship to their own country or hometown. The issuance of the baby’s passport typically takes four weeks.

Legal Disputes