Surrogacy in Peru: What weighs more, love or genetics?

In Peru, neither assisted reproduction nor gestational surrogacy is legally regulated. Consequently, there is no recognition of procreative intention when considering legal parenthood (unlike in Argentina or Mexico), surrogacy agreements have no legal validity, and the legal mother is determined solely by childbirth.

Recognition of the intended mother depends upon judicial proceedings that may take years. During this period, families live in a situation of legal uncertainty, with parental rights belonging to the genetic father (in the case of a heterosexual couple) and the gestational carrier.

Given that surrogacy is legal (what is not prohibited is permitted), several clinics practise it regularly. However, intended parents often lack sound and comprehensive legal information and do not anticipate the long-term consequences.

One particularly troubling case involved cross-border reproductive care, where a Chilean couple attempted to leave Peru with their newborn children without having taken appropriate legal precautions; they were subsequently imprisoned and criminally prosecuted for child trafficking.

The case before the Tribunal

A recent case – in which I participated as a legal consultant – involved a couple where both partners were infertile and the woman was unable to gestate. The embryo had no genetic links to either intended parents or to the gestational carrier, who was a close relative and friend of the intended mother. The child was registered as the daughter of the gestational carrier and the intended father. Constitutional proceedings were initiated so that the civil registry would rectify the birth certificate and recognise the intended mother as the legal mother.

The case was won at first instance and lost on appeal, ultimately reaching the Constitutional Court, where the claim was upheld by four votes to three and the intended mother was recognised as the legal mother.

The judgment, however, features many warning signs regarding judicial perceptions of assisted reproduction in general, and of surrogacy in particular. The disagreement among the judges was such that another similar case remains pending.

The positive aspects

The strongest element of the judgment is its prioritisation of the child's best interests. The majority opinion recognised that the girl had been intentionally sought, raised by those who exercised parental functions, and had developed stable family bonds with them. For the Constitutional Court, the state bears the inescapable obligation to protect that family, irrespective of how it was formed.

The missteps

The decision was deeply divided: four votes in favour, three against, and multiple separate opinions. The reasoning is not entirely coherent and reflects significant disagreements as to how assisted reproduction should be interpreted within constitutional law.

One of the most problematic elements was the introduction of categories such as 'absolute sterility' or 'untreatable infertility'. From a medical perspective, infertility is recognised as a disease or a reproductive disability. The sub-classifications introduced in the judgment do not exist in medical science, and such artificial distinctions generate confusion.

Another misstep is the absence of procreative intention as a criterion for decision-making. In several Latin American countries, legal parenthood in the context of assisted reproduction is grounded in the deliberate intention to become a parent, expressed through informed consent and a parental project. Genetics or gestation are not the only possible criteria. The Court resolved this specific case but avoided proposing a structuring principle that would provide greater legal certainty in the future.

The red flags

Debates concerning the right to identity also permeated the judgment. When determining parenthood in assisted reproduction cases, the genetic dimension – although relevant – depends on context. While the majority of judges avoided a strictly genetic approach, the minority opinions insisted upon a 'biological truth' as part of identity, thereby calling into question the role of anonymous donors, the couple's procreative intention, and the child's identity beyond her genetics.

Due to the absence of genetic linkage, the dissenting judges questioned whether the intended parents – who had raised the child for nine years – were indeed her parents, urged that the 'genetic parents' be sought, and concluded that the intended parents should adopt the child in order to become legal guardians. They further proposed investigating fertility clinics.

All of this disregards the child's best interests; she is unaware of her origins, and undergoing an unjustified adoption process would be deeply traumatic for her.

Conclusion

Surrogacy is an ethically complex practice. However, prohibiting it or ignoring its existence has proven ineffective and only increases risks, particularly in contexts of social inequality. For families, this means uncertainty; for children, lack of security in their rights; for medical teams, operating within a legally hazardous grey zone.

Encouraging education and advisory support in bioethics for High Courts and members of the judiciary is vital to avoid serious ethical and legal missteps.

The judgment of the Constitutional Court constitutes a significant advance in the protection of one child, but it also exposes the fragility of the current model. Case-by-case solutions do not substitute for a clear, normative architecture that protects rights. Regulation is required to establish human rights standards, provide legal certainty, and guarantee particular care and safeguards for women acting as gestational carriers.