Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-tn8tq Total loading time: 0 Render date: 2024-06-20T12:38:03.976Z Has data issue: false hasContentIssue false

Argentina

Published online by Cambridge University Press:  09 January 2024

Nicolás Espejo-Yaksic
Affiliation:
University of Oxford
Claire Fenton-Glynn
Affiliation:
University of Cambridge
Jens M. Scherpe
Affiliation:
Aalborg University, Denmark
Get access

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;

Type
Chapter
Information
Publisher: Intersentia
Print publication year: 2023

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×