Argentina

Summary

1. GENERAL LEGAL FRAMEWORK

Argentine civil and commercial legislation does not regulate surrogacy, and there are also no specific legal regulations on its practice. Neither is it expressly prohibited, criminalised or sanctioned with absolute nullity or any administrative, criminal or other kind of penalty. Gil Dom í nguez explains this as follows:

Although there is a legal vacuum, this does not mean there is a constitutionalconventional vacuum. First because legality as a structural principle of the Argentine constitutional and conventional rule of law establishes that “no habitant of the Nation will be obligated to do what the law does not require, nor deprived of what it does not prohibit (article 19 NC)”.

At a higher level, there is no specific constitutional norm in Argentina, nor in the in the Inter-American Human Rights System, that prohibits the practice of surrogacy. However, there have been several legislative initiatives, all of which were ultimately unsuccessful.

1.1. 2012 DRAFT BILL TO REFORM THE CIVIL AND COMMERCIAL CODE

The Bill Reforming and Unifying the Civil and Commercial Codes, presented in the National Congress in 2012, sought to shed light on, and adjust to, the different lived family realities prevailing in our society today, incorporating changes in family relations from a modern, pluralistic, gender, integrative and supportive perspective.

Focused on the constitutional and international human rights perspectives, the bill suggested that access to assisted reproduction techniques (ART) would be given in a broad and egalitarian manner, without discrimination, thereby guaranteeing the essential right to found a family to everyone. Under this premise it was planned to regulate, in article 562 of the bill, the concept of surrogacy as follows:

Gestational surrogacy: The prior, informed and free consent of all parties involved in the surrogacy process must comply with the provisions of this Code and the special law.

Parenthood is established between the child born and the intended parent(s) (los comitentes) through the birth certificate, the identity of the intended parent(s) and the consent duly approved by judicial authority.

The judge should authorise parenthood only if, in addition to the requirements set forth in the special law, it is proven that:

• a) the best interests of the child that may be born have been taken into consideration;

• b) the surrogate has full capacity, and good physical and psychological health;