When does surrogacy become human trafficking? An Argentine Court draws a difficult line

In May 2026, a federal judge in Córdoba, Argentina, issued a pre-trial order in a criminal case involving surrogacy arrangements. The order does not amount to a conviction: it establishes that there is sufficient evidence for the case to proceed towards trial.

The judge ordered the prosecution of the director of a fertility clinic, an administrative employee and a lawyer for human trafficking. The lawyer was also prosecuted for making false statements in judicial documents concerning the existence of a prior friendship between the parties, and the allegedly exclusively altruistic nature of the arrangements submitted to the family courts.

The decision attempts to draw a line between autonomous reproductive decisions, and situations in which a surrogate's vulnerability may have been deliberately exploited.

The case began in 2024 following an anonymous report to a national hotline for reporting suspected cases of human trafficking and exploitation. The investigation found that some of the women had previously contacted the clinics as egg donors before being connected with people seeking a surrogate. Nine individuals – doctors, administrative staff, psychologists and lawyers – were initially investigated in relation to 14 cases involving 13 women. A separate federal investigation in Buenos Aires is examining a similar alleged scheme: prosecutors identified at least 49 surrogacy cases sharing features with the case that triggered that inquiry.

Argentina has no law specifically regulating surrogacy. Law 26,862 guarantees access to assisted reproductive technologies, while the Civil and Commercial Code (CCC) recognises these techniques as an autonomous source of legal parentage without regulating surrogacy itself. It establishes rules on prior, free and informed consent, procreative intent, determination of parentage irrespective of genetic contribution, and access to information about donors. Article 562 of the CCC provides that parentage is established in relation to the person who gives birth and the person who has given the relevant consent, regardless of who contributed the gametes.

In the trafficking investigation, prosecutors argued that financial compensation, intermediation and the surrogates' economic circumstances were indicators of exploitation. The judge rejected the view that these factors were sufficient in themselves. He held that:

• Surrogacy is not prohibited in Argentina.
• Not every surrogacy arrangement amounts to trafficking.
• Financial compensation does not, by itself, prove exploitation.
• Vulnerability cannot be inferred simply from poverty or inequality.
• It must be shown that the accused knew of that vulnerability and deliberately exploited it.
• A central question is whether the woman retained genuine alternatives and the freedom to accept, revoke or abandon the arrangement.

In October 2024, the Argentine Supreme Court held that there is no legal vacuum allowing courts to depart from the rule established by the CCC: the person who gives birth is the legal mother. It also stated that it is for Congress – not the courts – to decide whether surrogacy should be specifically regulated. In the meantime, surrogacy continues to be practised, while its legal consequences are resolved by the courts on a case-by-case basis.

The investigation examined payments, the surrogates' socio-economic circumstances, psychological assessments and court submissions which, in some cases, described pre-existing friendships and exclusively altruistic motivations that did not correspond to the facts.

In the cases that led to prosecution, the judge considered that, to the evidential standard applicable at this stage of the proceedings, the intermediaries were aware of the women's vulnerability and may have deliberately exploited it. He also took into account conduct such as pressuring prospective surrogates to agree to or continue with the process, arranging payments, and concealing relevant information from the courts (including recent obstetric history, medical risks, and the absence of any genuine prior relationship with the intended parents).

The outcome was different where no such exploitation was established. Women who had employment, family income, health coverage or previous experience of these procedures were considered capable of making autonomous decisions. Ethical irregularities, financial disagreements or the absence of a prior friendship were not regarded, on their own, as sufficient to constitute human trafficking.

The most legally novel – and controversial – aspect of the decision is its interpretation of the offence of trafficking. The judge considers that subjecting a person to servitude 'in any form' may encompass reproductive exploitation where the bodies of vulnerable women are instrumentalised through the deliberate exploitation of their economic need. On this view, the absence of a specific offence labelled 'reproductive exploitation' would not prevent the application of trafficking law where the facts fall within existing criminal law categories.

If economic disadvantage is too readily treated as evidence that consent is absent, there is a risk of replacing women's own decisions with a paternalistic view of which choices they may legitimately make. Yet the opposite approach is equally problematic: formal consent cannot end the inquiry where extreme need, misinformation, pressure or a relationship of dependency has been deliberately used to restrict the alternatives available. The judge attempts to avoid both extremes.

The Córdoba decision highlights the cost of defining retrospectively, through litigation, the acceptable limits of surrogacy – a practice that continues in the absence of concrete safeguards directed at clinics and intermediaries to prevent conflicts of interest, and make the protection of surrogate women's human rights effective.

These cases show what happens when no legal framework exists: the boundary between reproductive autonomy and exploitation is drawn after the event and, in some cases, through the harshest categories of criminal law.

The challenge is not simply to decide whether surrogacy should be permitted or prohibited. It is to build safeguards capable of distinguishing a genuinely autonomous reproductive decision from the exploitation of vulnerability before the process begins, rather than years later before a criminal court.