Male same-sex couples and surrogate motherhood: at a crossroads
| Autor | Carlos Jesús Molina-Ricaurte - Jaime Elías Torres Buelvas |
| Cargo | Universidad Cooperativa de Colombia, Bogotá, Colombia - Universidad Cooperativa de Colombia, Bogotá, Colombia |
| Páginas | 155-170 |
Revista Ius et Prax is, Año 28, Nº 3, 2022
Carlos Jesús Molina-Ricaurte ı Jaime Elías Torres Buelvas
pp. 155 - 170
155
Revista Ius et Praxis
Talca, Chile, 2022
Artículo
Fecha de recepción: 2021-12 -16; fecha de aceptación: 2022 -07-11
MALE SAME-SEX COUPLES AND SURROGATE MOTHERHOOD:
AT A CROSSROADS
Parejas masculinas del mismo sexo y maternidad subrogada:
en una encrucijada
CARLOS JESÚS MOLINA-RIC AURTE*
JAIME ELÍAS TORRES BUELVAS**
Universidad Cooperativa de Colombia
Abstract
Surrogate motherhood is a practice that is increasingly standing out from the already known forms of
reproduction, primarily because of its evolution in such a short period. These fast-paced changes entail a truly
complex reality fo r the practice that requ ires the attention of bioethics, law, and politics. At present, surrogate
motherhood is a valid option for, among others, male same-sex couples who wish to be parents. However,
legal and economic barriers that bring about inequity and injustice remain. Therefore, it becomes necessary
to analyse and synthesise these topics.
Key words
Male same-sex couples, parenthood, surrogate motherhood.
Resumen
La maternidad subrogada es una práctica que se aparta, cada vez más, de las formas de reproducción ya
conocidas, en buena parte, por la evolución que ha experimentado en tan poco tiempo. Estos cambios
vertiginosos hacen de ella una realidad muy compleja que requiere la atención de la bioética, el derecho y la
política. Hoy la matern idad subrogada se convierte en una opción válida para las parejas masculinas del mismo
sexo en la búsqueda de la paternidad. Sin embargo, siguen existiendo barreras legales y económicas que
generan situaciones de inequidad e injusticia. Por ello, se hace necesario analizar y sintetizar estos temas.
Palabras clave
Parejas masculinas del mismo sexo, paternidad, maternidad subrogada.
Introduction
Surrogate motherhood, or ‘third party reproduction,’ is an assisted human reproduction
technology (AHRT) that has existed for more than three decades but still generates controversy;
hence, it continues to be part of the academic debate. The concept has indeed evolved
considerably, which is why we do not face the same issues currently that we did two decades
ago. Numerous countries have already passed laws on surrogate motherhood, and there are
debates around the need for international regulations. The fact that many countries, at the time
of writing, forbid surrogacy, establish restrictions for its practice or simply give free rein to it
only shows how difficult, if not impossible, it is to arrive at uniform international legislation.
Many studies favour the primary interest of the child or the rights of surrogate mothers;
however, this study aims to assess the rights of those who willingly agree with a woman to
undergo a reproductive medical procedure and bear their child until the end. Once the child is
* Universidad Cooperativa de Colombia, Bogotá, Co lombia. carlosj.molina@campusucc.edu.co.
** Universidad Cooperativa de Colombia, Bogotá, Colombia. jaime.torresb@campusucc.edu.co.
Revista Ius et Prax is, Año 28, Nº 3, 2022
Carlos Jesús Molina-Ricaurte ı Jaime Elías Torres Buelvas
pp. 155 - 170
156
born, she will also commit to surrender any rights to the child to the people we will call ‘intended
parents.’
Undoubtedly, considering the rights of the intended parent(s) within the framework of
surrogate motherhood can help the law provide the necessary answers to the new challenges
that this globalised world poses. Currently, health problems related to infertility are garnering
the attention of healthcare systems in most countries and are becoming relevant among public
health policies, plans and programmes. Male same-sex couples do not have infertility problems
in the strictest sense; however, surrogate motherhood allows them to become parents by
agreeing with someone willing to carry the child. In such agreement, she decides to bear a child
and, once said child is born, deliver the child and surrender her motherhood rights to the couple
in question.
Male same-sex couples can enter into such an agreement in their own countries or
abroad; however, a problem arises within countries that forbid or impose restrictions on
surrogate motherhood. Citizens who agree to the practice abroad generally generate severe
conflicts when the relevant authorities do not grant them their child’s birth certificate upon
returning to their country 1.
This study proposes an analysis of surrogate motherhood as an option for male same-sex
couples based on equity and justice criteria. The analytic-synthetic method is employed herein
because such a method first deconstructs the subject of the investigation into parts or
components, which, in this case, are the rights of male same-sex couples opting for surrogate
motherhood. Subsequently, a synthesis is performed that reveals the relationships between the
different elements that compose the phenomena or reality of the subject.
This study also incorporated the feedback received in different academic spaces,
particularly from colleagues in interdisciplinary fields such as gender studies. Most of these
colleagues come from countries with a civil law tradition, where the rights of surrogate mothers
have been gaining prominence, thereby making the practice of surrogate motherhood much
more restrictive. The need to ascertain points of comparison among different legal systems was
soon identified, even for countries under common law, such as the United States. Such
comparison helped us understand the problem from a global perspective and propose the
primary supposition that we seek to confirm: It is necessary to have international regulations on
surrogate motherhood that meet the demands of equity and justice.
1. Surrogacy relationships
First, the involved parties in the ‘surrogacy relationship’, as Stuvøy2 calls it, must be
identified: the woman who agrees to bear a child and the person or couple that wishes to
become parents through surrogacy. However, there can also be a third donor. In the first
scenario, the woman agr ees to bear a child; she can choose whether to donate her genetic
material because the possibility of the person or couple in question supplying their genetic
material could also exist. In the second scenario, or the third one, if we consider the previous
possibility to be the second scenario, a third party donates the egg to be fertilised or the sperm—
depending on the case—that will later be implanted in the surrogate mother3.
Surrogate motherhood is defined through a surrogacy agreement, where a person or
couple who cannot bear a child or merely wishes to avoid the process of pregnancy agrees with
a woman who, either gratuitously or in exchange for payment, commits to carrying and
delivering a child to them. In this agreement, the woman expressly surrenders all rights over the
child so that the person or couple in question can assume legal parenthood. Initially, only two
parties agreed: the surrogate mother and the intended parents. Nevertheless, it is possible that
the spouse or partner of the surrogate mother also participates. Some legal systems, particularly
1 FENTON-GLYNN & SCHERPE (2019), p. 562.
2 STUVØY (2018), p. 37.
3 MARINELLI (2020), pp. 36-43; ME NIKOFF (2001), p. 96.
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