Surrogacy in Latin America
Edited by Dr Nicolás Espejo Yaksic, Professor Claire Fenton-Glynn and Professor Jens Scherpe
Published by Intersentia
ISBN-10: 1839703253, ISBN-13: 978-1839703256
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A decade ago, reproductive medical tourism was mainly an issue for Asian countries, particularly India, Nepal and Thailand. With many since closing their borders to international intended parents, much like 'whack-a-mole', new destinations have emerged as 'reprohubs', destinations specialising in the provision of reproductive services. Many emerged in Latin America (and Africa), but with very little on the topic, the publication of 'Surrogacy in Latin America' is particularly welcome.
In 2019, following a five-year research project conducted across five continents and nineteen jurisdictions, Professor Claire Fenton-Glynn and Professor Jens Scherpe edited 'Eastern and Western Perspectives on Surrogacy', a comprehensive encyclopaedia on surrogacy regulation (see BioNews 1027). 'Surrogacy in Latin America' is a follow-up volume, produced in collaboration with Dr Nicolás Espejo Yaksic, addressing the lack of Latin American countries in the first publication.
This comprehensive compendium of surrogacy regulation in Latin America is the first of its kind published in English. Spanning twelve countries (Argentina, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Mexico, Peru, Puerto Rico and Uruguay), the collection provides a contextualised analysis of each jurisdiction's regulatory approaches. As with 'Eastern and Western Perspectives on Surrogacy', each chapter was written in response to a questionnaire provided by the editors.
A welcome change from the previous collection is the inclusion of questions related to the socio-economic context of surrogacy, including the demographics of surrogates and intended parents, relationships between the parties, and the involvement of any third-party intermediaries.
Much like 'Eastern and Western Perspectives on Surrogacy', in this compendium, each chapter is structured similarly, starting with a discussion on the laws on parenthood, domestic surrogacy arrangements, and legal parenthood following cross-border surrogacy. From here, the chapters discuss eligibility requirements for surrogates, for intended parents, third-party involvement, criminalisation, academic debates on the practice, and future regulatory pathways. Given each jurisdiction's cultural context, each chapter also discusses any cultural features shaping the practice.
Only a quarter of these twelve jurisdictions (Mexico, Uruguay, and Puerto Rico) explicitly regulate surrogacy – albeit in an incomplete manner. Of the aforementioned, only two of the Mexican states outright ban the practice; however, due to Mexico's federal structure, other states, notably CDMX, are increasingly popular surrogacy destinations. Puerto Rico recognises gestational surrogacy only. Uruguay recognises surrogacy in exceptionally narrow circumstances: a second-degree relative of either intended parent may act as an uncompensated gestational surrogate, and the embryo carried must be genetically related to the intended mother. In the remaining eight jurisdictions under discussion, the judiciary has actively sought to remedy the legal lacunae as surrogacy's popularity increases. It's clear that in an increasingly globalised world, surrogacy cannot be ignored anywhere.
I read this book with the Law Commissions' Final Report and Draft Bill (see BioNews 1185) in mind, and as such, I drew comparisons between any similarities. For example, Argentina's proposed bill, includes the creation of a surrogacy register – as does the Law Commissions' Final Report. However, the former aims to ensure that surrogates have given birth and are involved in a maximum of two arrangements, whereas the latter is more concerned with children's ability to access and know their origins.
Two countries in particular captured my attention, Brazil and Chile. While neither country regulates surrogacy explicitly, the socio-cultural context results in a vastly different approach to surrogacy and different concerns. Both jurisdictions are attractive destinations for medical tourism more broadly, and surrogacy is no exception. Brazil's approach to surrogacy is quite liberal from the intended parents' perspective, as there are no restrictions on their eligibility. As Brazil's legal framework does not provide a rigid legal definition of motherhood, the approach to birth registration and certification is reflective of lived reality, as following a surrogacy arrangement, the intended mother's may be registered as the legal mother. Additionally, those born through surrogacy may access the declaration of live birth and obtain information about who gave birth to them.
Reading through the chapter on Chile, there was a clear focus on the need to safeguard children born through surrogacy, an approach the Law Commissions sought to include in their proposals as well.
While the edited collection is well-written and reminds readers of the cultural complexities inherent in surrogacy regulation, there are some continuity issues in the book. For example, whereas the introduction states that surrogacy is regulated in four countries (Brazil, Mexico, Uruguay and Puerto Rico), the chapters concerning these jurisdictions paint a different picture.
Brazil's surrogacy history may surprise those unaware of its medical capacity; with one of the largest healthcare systems in the world, the country remains one of the top medical tourism destinations globally. Additionally, there are a few structural features whose inclusion would have made this collection even more impactful. First, the introduction spent more time than arguably necessary discussing the previous book, rather than contextualising surrogacy regulation in Latin America. It would have been even better to have a discussion of why Latin America was chosen, information on how and why Latin America is becoming a surrogacy hotspot, and more discussion on the inclusion of these twelve jurisdictions.
A table providing a summary of the shared features and key divergences would have been a useful reference for the reader, aiding in their own comparative analysis. Additionally, the lack of a concluding chapter was quite shocking, especially given the rather lengthy introduction. This introduction had discussed the editors' views regarding future directions in surrogacy law. However, such a future-oriented discussion would have been better suited as part of a concluding chapter, one which highlights trends in surrogacy more broadly.
Alongside the first book, and the research conducted more broadly by the editorial team, another volume exploring surrogacy in another region, perhaps Africa, could be next?
Notwithstanding the ever-changing nature of surrogacy regulation, without any comprehensive global compendia on surrogacy regulation, comparative analysis on the topic is difficult to undertake. In a time where surrogacy reform is on the horizon across the globe, such a series would be exceedingly welcome.
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