Argentina's surrogacy stalemate

Georgia and Tim's story

Georgia is a school principal. She suffered early-stage cervical cancer and then significant adenomyosis and endometriosis. After a long and unsuccessful IVF journey in Australia, she and electrician husband Tim decided to pursue surrogacy in Buenos Aires about 18 months ago. Argentina is popular given the availability of donors from European backgrounds, and favourable court rulings around who can be listed on the birth certificate (more about that later).

Anxious to minimise their time away from home, the couple engaged with Growing Families months before their son's due date, intent on gaining all the professional support they could to expedite the issue of Australian citizenship and an emergency passport.

Armed with reams of paperwork in advance, their son Hamish was born prematurely in March this year, spending his first two weeks in a Buenos Aires neonatal unit. It would be 136 days until the city's Civil Registry issued Hamish a birth certificate. The fact that the Civil Registry has a legal obligation of 40 days to issue such documents seemed a moot point.

Without any ID, Hamish was denied his two-month vaccinations until the Australian embassy stepped in a month later.

Background

Another couple was barred from checking into any hotel because their six-week-old twins had no identification. Yet, it is not just a few families affected. The Buenos Aires authorities placed a freeze on issuing birth certificates to all newborns via surrogacy in April, leaving scores of families from around the world with undocumented infants. Despite multiple international conventions to which Argentina is a signatory declaring that a birth identity is a fundamental right, as the weeks and months drag on, more and more vulnerable newborns remain without an identity. Australians, New Zealanders, Argentinians, Austrians, French and Irish nationals are just some of those affected.

But this debacle is just the latest in a series of problems haunting the surrogacy sector over the last decade. Discomfort with huge influxes of foreign intended parents led countries such as India, Thailand and Cambodia to ban the process about a decade ago. When Russia invaded Ukraine in 2022, it decimated that country's surrogacy landscape (see BioNews 1188); and in Greece and Georgia, nations with attractive surrogacy legislation for foreigners, the wholesale import of foreign women to act as surrogates led to crises and government intervention in 2023 (see BioNews 1204).

As intended parents deserted Ukraine in their hundreds, Argentina became the latest surrogacy destination targeted by entrepreneurial operators. So what was Argentina's attraction?

Surrogacy Landscape in Argentina

A 2017 court ruling in the City of Buenos Aires, designed to assist local gay couples to be recognised as parents, allowed newborns via surrogacy to be automatically registered as a child of the intended parents, without any judicial or state control, as long as certain pre-conditions were met. The rules applied whether you were heterosexual or gay; partnered or single. In each case, the intended parents alone were listed on the birth certificate.

Entrepreneurs eager for environments which allowed such simple processes and a large population to recruit could not help themselves. The first foreign surrogacy companies started investing in 2021. While it is unlawful to operate a surrogacy agency in Argentina, or to compensate surrogates beyond expenses, agencies who are recruiting and managing surrogates simply registered their businesses elsewhere and declined to specify how much a surrogate might be compensated.

Within two years, dozens of foreign agents were selling surrogacy programmes running locally in Buenos Aires. The lack of surrogacy laws was seen as a plus – no red tape to jump through.

By early 2024, not only Buenos Aires, but other large Argentine cities (which require court processes to recognise parentage) were seeing a huge rise in apparently altruistic surrogacy births for foreigners.

In this somewhat conservative, Catholic-influenced nation, the alarm was raised. In February 2024, Susana Medina, leader of Argentina's Women Judges Association met with her fellow countryman Jorge Mario Bergoglio – better known as Pope Francis.

Medina strongly recommended surrogacy be classified as a crime of 'trafficking for reproductive exploitation'. Children carried by an Argentinian surrogate should not have foreign intended parents appear on the birth certificate, she argued, it was not what Buenos Aires 2017 judgment was designed for. Medina was clear that contracts signed by foreigners who had never visited Argentina before entering such an arrangement should be declared null and void; advertising should be prohibited; and intermediaries pursued and punished.

A month later, Buenos Aires Civil Registry suddenly raised the bar for obtaining birth certificates. All non-Spanish speakers needed to find a certified translator who spoke their language to verify all documents. The ruling was retrospective; those with babes in arms had to re-submit documents and wait. For Georgia and Tim, it led to another fortnight's delay. And another. And another.

Argentina's Attitude Towards Surrogacy

The Pope was clearly listening. In his April Declaration Dignitas Infinita, he used his position to condemn surrogacy, writing: 'With this practice, the woman disassociates herself from the child growing inside her and becomes a mere means at the service of profit or the arbitrary desire of others. This is in complete contradiction with the fundamental dignity of every human being' (see BioNews 1233).

In the same month, a surrogacy scandal erupted in the Argentine city of Cordoba. An 'anonymous tip-off' was made regarding 14 women employed as surrogates. In the absence of surrogacy laws, Cordoba prosecutors launched an investigation under suspicion of 'human trafficking'.

Given the explosion in demand for Argentine surrogacy, it was perhaps no surprise that there were now unethical operators taking any surrogate they could find. Two Cordoba IVF clinics were searched, and Argentina, proudly nationalistic, suddenly saw the reality: as agencies took advantage of a loophole in the capital's regulations, the nation's vulnerable women were at risk. Pope Francis' recent declaration was cited as evidence of foul play.

One Cordoba surrogate was widowed, and with her second partner in prison, had accepted an attractive sum to carry for a couple. Since the surrogacy birth, she has been suffering from hypertension, mastitis, incontinence and bleeding.

Prosecutors were now warning that recruiting such women, especially when vulnerable and in poverty, amounted to a criminal endeavour. They alleged that lawyers were falsely declaring to the courts that each surrogate was known to the intended parents and hid the financial compensation. Even psychologists involved in surrogate screening were drawn into the web.

While in Buenos Aires there is no court process required, the Civil Registry needs to approve surrogacy agreements before a birth certificate can be issued. In the absence of specific surrogacy law, authorities had just one means to discourage the practice: slow down or stop the issuance of birth certificates.

New Policies

A local judge acted fast. On 4 June, a new policy was announced. Immigration and Civil Registry authorities were to note that birth certificates conferred no legal relationship. A blanket ruling was published: no child purportedly born via surrogacy could leave the city in which they were born unless an Argentine birth certificate and local passport had been granted.

Even those few parents whose home countries have issued citizenship and passports, in the absence of a birth certificate, remained trapped. They have been warned that border control authorities will turn them away unless a birth certificate can be produced.

On 22 July, the Civil Registry clarified its new approach. It would no longer accept surrogacy registrations without prior court approval, in line with the rest of the country. Lawyers such as Fabiana Quaini are estimating that such approvals will take at least four months to process, but can be commenced during the pregnancy. Meanwhile, lawyers will need to apply for a birth certificate for each case individually through the court, adding months of red tape.

A handful of surrogacy lawyers in Buenos Aires are furious, and surrogacy advocates and local parents have accused the authorities of acting illegally. A group of local gay parents lodged an appeal, months ago, the Civil Registry is facing legal action and one lawyer has filed criminal charges against the Judge who made the order. However, these cases are not likely to be heard soon, and filing a motion with the Interamerican Commission of Human Rights (to which Argentina is a signatory) would also take many months.

Buenos Aires' mayor Jorge Macri has refused to intervene, so this week scores of affected families plan to protest at the Civil Registry with the media in tow.

Future Uncertainties

On 9 August, Hamish and all infants born before 4 June finally received birth certificates. Each with a note attached to iterate that the document 'does not constitute a legal relationship'. Five days later, Hamish and his parents arrived in Australia, though the Argentinian and Chilean border controls were relentless.

For births between 4 June and 22 July, the Civil Registry has been instructed to enter only the surrogate on the birth certificate. If the surrogate is named, lawyers argue that she must then explicitly renounce her prior consents to name the intended parents. But at this stage, many families are beyond worrying about the legal arguments. They just want a pathway to bring their infants home.

Some lawyers insist that for infants born after 22 July, the new rules are set. The birth certificate will show the surrogate and biological father. The lawyer can then, as occurs in Mexico and Colombia, file a motion to obtain a new birth certificate removing the surrogate.

In the early months of this debacle, surrogacy agencies hoped that all would be resolved quickly and processes could return to normal. Now over 60 stateless newborns are caught in this awful conundrum, and it is becoming clearer that judicial authorities may be sending a message: commercial surrogacy arrangements, foreign agencies and hordes of nameless foreigners engaging with local Argentinians to create a family are not welcome.