Surrogacy Insights

Surrogacy in Peru exists in a legal gray area, as there are no specific laws governing the practice.  However, the reservation principle outlined in Article 2, (24) of the Peruvian Constitution, which essentially states that individuals are not bound by what the law does not expressly prohibit, has created a loophole for surrogacy to occur.  This legal ambiguity has allowed surrogacy to thrive in Peru, particularly commercial surrogacy.

Legislation

Despite the absence of clear legislation, there have been attempts to regulate surrogacy in Peru.  In 2013, a Bill was proposed to only permit uncompensated surrogacy, aiming to regulate the practice and ensure the protection of all parties involved.  However, the fate of this Bill remains uncertain, as it has neither been accepted nor rejected, leaving the surrogacy landscape largely unregulated.

As a result, commercial surrogacy continues to flourish in Peru, with individuals and couples seeking surrogacy arrangements within the country’s borders.  The lack of a legal framework raises concerns regarding the rights and protections of surrogate mothers, intended parents, and the children born through surrogacy.  Additionally, without clear regulations, issues such as financial agreements, parental rights, and the ethical implications of surrogacy remain unresolved, highlighting the urgent need for comprehensive legislation in Peru.

Constitutional Court of Peru

Peruvian law entitles any child born to a Peruvian citizen, regardless of location, to Peruvian citizenship.  In a groundbreaking court battle in Peru, Ricardo Moran challenged the National Identity and Civil Status Registry (RENIEC) to register his minor children as Peruvian citizens.  Born through surrogacy in Texas, USA, the children faced bureaucratic hurdles due to Peru’s civil code, which traditionally allowed unilateral registration only when the identity of the mother was unknown, not the father.

The Constitutional Court of Peru intervened, prioritizing the children’s best interests and their right to identity and nationality. They ruled in favor of Moran, deeming the differential treatment between fathers and mothers in the civil code unconstitutional. This landmark decision signifies a crucial step towards gender equality in Peru’s legal landscape.

Moran’s case highlights the urgent necessity for comprehensive legislation to tackle surrogacy-related concerns and guarantee equal rights for all families in Peru.  Remarkably, the Constitutional Court refrained from deeming surrogacy, within Peru or abroad, unconstitutional or prohibited.