Argentina’s legal situation: Facts vs. Rumors
Expert insights on navigating surrogacy in Argentina
In recent weeks we have seen a surge of questions and concerns around surrogacy in Argentina. To shed some light on this complex issue, Babies Come True (BCT) hosted a live webinar featuring its founder Nir Keren, a worldwide surrogacy expert and renowned Argentine lawyer Sylvina Sanchez, who counts with over 20 years of experience and a track record of 100 successful international surrogacy cases.
The primary goal of the webinar was to dispel rumors and provide accurate, up-to-date information about surrogacy in Argentina. Here’s a deeper look into the insightful conversation between Nir and Sylvina.
Can you still do a safe Surrogacy Journey in Argentina?
The webinar kicked off with a pressing question from Nir: “Can you still do a safe surrogacy journey in Argentina?”. Given the recent media attention, this is a top concern for many. Sylvina’s response was clear and reassuring: “Absolutely, yes” and she emphasized, “Argentina is a safe place to do surrogacy”.
After addressing this on a positive note, the conversation turned to debunking the rumors, as Nir mentions the recently published article full of inaccuracies, prompting Sylvina to express her disappointment.
“I’m truly saddened by that article”, Sylvina began. “They mixed different concepts and situations, it is simply not correct”. She expressed confusion about the article’s purpose, concluding “that’s not the reality of what is happening in Argentina”.
Is Surrogacy Legal in Argentina?
To address one of the most fundamental questions, Nir asked, “Is surrogacy legal in Argentina?” The lawyer confirmed that surrogacy is indeed legal throughout the country.
She clarified that until June 2024, there were differences between Ciudad Autónoma de Buenos Aires (CABA) and the rest of the country. However, a class action lawsuit resulted in a ruling that extended surrogacy rights nationwide.
Altruistic or Commercial Surrogacy?
A common point of confusion is the type of surrogacy model in Argentina. Nir inquired, “Is surrogacy in Argentina altruistic or commercial?”.
The lawyer clarified that surrogates are compensated in Argentina, which doesn’t make it strictly altruistic. While it is true that surrogates are not allowed to become wealthy from the process, compensation is permitted. The reason behind this is to ensure surrogates are not financially burdened and can maintain their standard of living while undergoing the process. It’s a model better known as Free Will.
Nir added that it’s important to differentiate this from the commercial surrogacy model in the US, where the surrogate states the amount of money they want; but in the case of Argentina it is a bit different, they can’t just ask for the amount they want, usually all surrogates are getting the same.
So, what makes the journey legal and what is free will? What is the criteria to make it legal?
To ensure the legality and protection of all parties, Argentina has specific requirements. The lawyer outlined the key elements. First, there is the Procreational Will, where both the surrogate and the IPs must clearly state their intentions before a judge. In this stage the surrogate states that she does not possess a procreational will, acknowledges that she is not the baby’s mother, and expresses her intention to not assume motherhood. Subsequently, the IPs declare their procreational will and that they will assume all the parental responsibilities for the baby.
Secondly, there are specific protocols and requirements that must be fulfilled to prove to the judge that a legal process has been followed. All documents must be signed in the presence of a public notary. This step assures the judge that all parties signed the agreement willingly.
Each party must have their own independent legal representation during the process. The public notary will certify the freedom, identity, and dates associated with the arrangement. Additionally, as an extra precaution, it’s often required that the fertility doctor also signs the documents. And, crucially, a translator must be present to guarantee that everyone fully comprehended the content of the document they are signing.
“Is this the free will part?” Nir asked after Sylvina explained all the aspects that make the journey legal. “Yes,” she replied, and explained that this is the way to prove that everyone’s rights are being protected and that everyone understands the process, its dynamics, and its consequences.
The agency will handle the remaining requirements. Choosing the right agency is crucial, as their level of involvement varies, as explained by Sylvina. Some agencies provide basic support, while others offer more comprehensive services. Babies Come True, for example, includes psychological, social work, and medical evaluations. BCT also provides ongoing support for surrogates, including psychological assistance if needed.
What are the requirements for someone to be a surrogate?
The surrogate should already have a job and the compensation shouldn’t be her sole income source. The surrogate must already be a mother with children living with her. Her home should have clean water, a bathroom, and meet hygienic conditions. It is important that she willingly chooses to undergo the process, and it shouldn’t be seen as a financial lifesaver. And, lastly, education is crucial to ensure she fully understands the process.
After the lawyer explained the key aspects to consider when choosing a surrogate, Nir asked, “Not all agencies that offer surrogacy in Argentina operate the same way, right?” to which Sylvina quickly responded, “Right.” Nir then went on saying that while this is the process BCT follows, not all agencies adhere to the same standards. He mentioned that this inconsistency is why the webinar was necessary—because some agencies’ actions prompted the government to intervene. Eager to address the issue, Nir then added, “Let’s dive into what actually happened in Argentina.”
What happened in Argentina?
Sylvina explains, “They found that in Córdoba, a province in the north of the country, there were some clinics with agencies inside, and you need to be an independent agency from the clinic, because the clinic is medical procedures only that, and the agency is another aspect of the process”. “This clinics they had an agency inside,” continues Sylvina “and they found they were using surrogate women that weren’t educated, they didn’t understand what they were going to do and they started to suspect that they had trafficking”. Nir continued asking what happened once the government was aware of this, and the government opened an investigation.
Sylvina continues, “They found that in some cases, those clinics and surrogates went to court to get an authorization, but they started to lie, they stated that they came from abroad and that the surrogate is their friend, and that’s not true”. As Sylvina says, you don’t need to be very clever to realize that is not true. That’s when the government decided to put a stop to it to analyze these cases. Because you can get registered without authorization or control in CABA, the government didn’t want people to go to CABA and register there without evaluating each case to make sure it wasn’t human trafficking. “That’s why in Buenos Aires they stopped registering babies without a court control”, concluded Sylvina.
So both the lawyer and Nir agreed that this was a measure to ensure safety, not a ban. “A lot of people without undergoing any controls were lying, they changed sensitive data, so the judge said, we are not talking about legal or forbidden surrogacy, we are just asking come every case and ask for individual authorization” concluded Sylvina.
Nir explained that, just like in Argentina, a case order is also required when going through the surrogacy process in the U.S., citing the lawyer’s own journey there as an example. He emphasized that Argentina’s requirement for a judge’s ruling and a case order isn’t something new in the World, and both he and Sylvina agreed that having this legal oversight provides added security for everyone involved.
People in a stuck situation. What happened?
“You have two different cases,” Sylvina stated explaining, “six of this cases they have a lawyer and when the baby was born went to Civil Registry to submit petitions, the registry observed some documents, and their lawyer didn’t arrive on time to correct, or complete or file those observations, so they were in the middle of that, when this judge stopped delivering the birth certificates.” Syvina continued “the other twenty four were born in the middle, and they submitted petitions and this order to suspend delivery of birth certificates without a judge order, so they were stuck during this adjustment. But this is an administrative adjustment. Yesterday (Tuesday 6th) the Civil Registry informed that these thirty couples, that from today on are going to receive the birth certificate for the baby born before June 6th”.
How did all this impact the surrogacy process in Argentina? What has changed in the process?
Nir explained that for BCT clients, these changes did not have a significant impact, as BCT already required court order as a part of their standard process. However, moving forward, the new procedures that everyone must follow are as follow:
During the pregnancy or after the baby is born, a lawyer will go to court and present all the signed documents, which were signed in front of a public notary, and request that the judge order the registration of the baby as the child of the IPs. The judge will first consult with the Minor’s Defender, who will ensure that there is no trafficking involved and that everyone participates freely and willingly. Once this review is completed and approved, the judge will direct the Civil Registry to register the baby as the child of the IPs, with no mention of the surrogate’s name on the birth certificate.
Naturally, the question of whether a pre-order is possible in Argentina was raised, and Sylvina confirmed that it is. She clarified that the pre-order can typically be done around the 20th week of pregnancy, as it usually takes 8 to 12 weeks to process. This can help reduce waiting time. BCT offers this service, but not all agencies do, so it’s important to keep this in mind.
Conclusions
The webinar continued with a discussion on the differences between various surrogacy agencies, followed by an engaging Q&A session that addressed participants lingering questions. Although the webinar was initially scheduled for an hour, it extended an additional 30 minutes to ensure that everyone received accurate information. Both Nir and Sylvina were committed to thoroughly answering all questions, providing peace of mind to all attendees.
Overall, it was an incredible informative webinar hosted by Babies Come True and served as a vital platform to clarify the legal landscape of surrogacy in Argentina, dispel misinformation, and emphasize the importance of ensuring a safe and ethical surrogacy.
Through the insights of experts like Nir and Sylvina, it was made clear that while surrogacy in Argentina remains legal, possible and safe, it is crucial to follow established legal protocols. The lawyer made it clear that the adjustments made by the government were not intended as a ban but a measure to enhance oversight and prevent unethical practices.
