The Legal Status of Surrogacy in Latin America

Abstract

Under the Inter-American Human Rights System, individuals have a right to access reproductive technologies. This is so in virtue of the 2012 Inter-American Court of Human Rights landmark reproductive rights decision in Artavia Murillo v. Costa Rica, in which the Court held that a complete ban on reproductive technologies, and assisted reproductive technologies in particular, interferes with the right to a private and family life, which includes the decision to become a parent, as well the option and access to the means to materialize that private decision. In spite of the Artavia Murillo ruling, the legal status of surrogacy agreements in State Parties to the American Convention on Human Rights is uncertain. This paper examines whether surrogacy is compatible with the Inter-American System of Human Rights. It focuses on three types of potential objections to the legalization of surrogacy: “corruption arguments,” that is, the idea that surrogacy corrupts maternity; “child welfare concerns,” that is, the idea that surrogacy should not be allowed because of its effects on resulting children; and the potential exploitation of surrogates. The author of this article concludes that these objections are not convincing but that the American Convention on Human Rights requires regulatory schemes that protect the rights of surrogates, intending parents, and children.

This paper is based on two previous papers on surrogacy in Latin America (Hevia 2018; Hevia forthcoming 2018).