“Mamá qué bien – we’re going to have a cousin!” said the youngest child of the woman authorized last Friday to carry the embryos of her two male friends. The verdict, issued by Family Judge María Laura Dumpé of Viedma, Río Negro, has no legal precedent.
In Argentina, surrogacy happens in a statutory vacuum. Section 19 of the Constitution permits as lawful anything that is not specifically forbidden. The Civil Code, updated in 2015, reaffirms the rights of individuals to constitute a family. But the State does not regulate surrogacy, and judges are required to approve individual cases. The decision usually hinges on the free consent of the intended parents and the gestational carrier. In a landmark case in 2013, the National Civil Court struck down the legal concept that someone who gives birth must be the child’s mother. That case permitted the intended parents to put their names on the child’s birth certificate in place of the gestational carrier’s name.
But last week’s verdict is the first in Argentine history to approve such a parental agreement before conception, as opposed to during pregnancy or after childbirth. Judge Dumpé authorized the woman to transfer a maximum of two embryos, with donated eggs and sperm from one of the men, at a time. She mandated psychological check-ups for the woman and her own children during pregnancy and after childbirth. Though the men committed to informing their children about their gestational origin, the babies will legally leave the hospital with two fathers.
In all surrogacy cases, family judges ask the gestational carrier about the way she met the intended parents, the relationship between them, and the way that her family and the intended parents’ families have dealt with the surrogacy. Since there is no Bioethics Committee in Viedma, Judge Dumpé ordered the Forensic Medical Corps to interview all parties in depth and generate socio-environmental reports. Dumpé had to determine that the woman was not being exploited and that she enjoyed an earlier and genuine friendship with the couple. Dumpé recalled to Infobae that the woman was stunned when asked how they will compensate her. “I do it for them because I adore them,” she said in court. “I know they have always dreamed of starting a family.”
The woman is a middle-class music teacher and mother of three children, one of whom is an adult and studies abroad. She will not have more children. “Just these, for them,” she told Judge Dumpé. The case is still exceptional. Surrogacy and adoption prospects are slim for two men, since judges often worry that the child will lack a maternal figure. But Dumpé had no doubts. One of the men is a lawyer. The other is a veterinarian. “I am a family judge,” said Dumpé. “I know that this child will be in the best family possible. If I can help that happen, of course, I will.”
The process, named “High-Complexity Assisted Fertilization with Egg Donation and Surrogacy,” has set in motion. Treatment will begin next week at a center for reproductive medicine in Bariloche.