by Natalia Rueda Vallejo*
Colombia has become a popular destination for couples seeking to carry out surrogacy at a low cost, given the absence of regulation in any sense and the country’s characterisation by a free market legal framework. In many instances, the pregnant woman, who does not provide her genetic material, is registered in the “certificate of live birth,” which is issued by the attending physician, and in the civil registry of birth. Subsequently, a maternity challenge process is initiated, during which a DNA test is requested. This test will, of course, exclude the genetic link between the pregnant woman and the child born.
In the majority of cases, the lawsuits were successful due to the judges’ erroneous interpretation of the DNA test as a form of legal fee. In this context, the jurisprudence, including that of the Constitutional Court itself, had almost unanimously declared that the pregnant woman was not the mother, that in the process promoted by an unmarried man there was no mother.
In a precedent-setting move for Colombia, the legal standing of a women involved in a surrogacy contract, has been recognised as that of a biological mother. In a decision handed down by a family court (38) in Bogotá on 4 December 2024, in the context of a maternity challenge process, a number of considerations are set forth that serve to clarify the situation.
The pregnant woman is a biological mother
One of the most pertinent and transformative conclusions is that the process of surrogacy represents a case of pluriparentality, given that the pregnant woman is the biological mother. The judge states that it is not possible to disregard the fact that the surrogate mother plays an indispensable role in the creation of a new human being. In this context, fertilisation, which gives rise to the claim of genetic paternity, must be regarded as the initial stage of the reproductive process. It is essential to acknowledge that throughout the gestational period, the pregnant woman provides nourishment, oxygenation, waste elimination, and the formation of the placenta, among other vital functions. These contributions are indispensable for the development and maturation of the embryo into a human being.
In this regard, this sentence challenges the widely held assumption that pregnancy is a trivial process, comparable to any other, and that it could even be regarded as a form of employment. The physical and emotional implications of pregnancy, which are still being studied by science, involve such sacrifices and commitment that they can condition the future life of the woman. For example, the risks of malnutrition and decalcification due to the need to provide macronutrients to the embryo/fetus can lead to the development of future diseases. Furthermore, there is a dearth of research examining the potential risks to the emotional and mental health of the pregnant woman, with the exception of the efforts of the Spanish psychiatrist Ibone Olza, director of the European Institute of Perinatal Mental Health, to make visible some problems related to this practice in the medical field and with a feminist perspective.
In this context, the judge in question posits that in surrogacy, there are two distinct biological mothers, a concept that the doctrine has distinguished as genetic maternity and biological maternity.
This represents a clear divergence from existing case law. The judge states that:
“The study and understanding of human reproduction does not allow for the accurate conclusion that the gestational carrier in these surrogacy processes is not the biological mother based on the results of the DNA test. The sole conclusion that can be drawn from the aforementioned test is that the gestational mother was not the egg donor used for fertilisation. As previously stated, although the pregnant mother did not provide the genetic material, she is the biological mother of the new human being, as she was the one who carried out the vital biological process of embryonic development, which is a prerequisite for the conclusion of the process of human reproduction. Affirming the contrary would lead to the absurd conclusion that the second step of human reproduction (gestation) occurred without the participation of a woman and that the body of a female human being is not necessary to create a new human being. Such a proposition would be tantamount to suggesting that women who gestate embryos whose genetic material is not theirs are mere incubators, when in fact, they are biological mothers who provide the biological material necessary for the embryo to survive, develop, and become a fetus”.
The impact of this decision
From a feminist standpoint, the implications of these statements are significant and warrant further examination. On the one hand, the judge is situating the woman-mother at the core of the debate, effectively excluded from the discourse in the rulings that are asserted to have been handed down by the constitutional court. This discourse has contributed to the trivialisation of gestation as a process and to the romanticisation of a practice in which a true phenomenon of reproductive exploitation takes place and which openly disregards the human rights of children born as a result of it.
From a procedural standpoint, the judge’s approach is noteworthy for its innovative stance on the admissibility of DNA tests in maternity disputes. The judge’s opinion is that the results of a DNA test alone cannot be used to disprove maternity. In the judge’s opinion, the genetic marker test only serves to prove that the pregnant woman did not provide the genetic material. Consequently, in a legal system such as that of Colombia, in which maternity is determined by childbirth (except in cases of adoption and foster motherhood, legally recognised by Law 2388 of 2024) the only grounds for a successful challenge to maternity are false birth and impersonation of the child in question.
In the case under review, neither of the two grounds in question was accredited. Furthermore, the aforementioned considerations indicate that the pregnant woman is a mother. Therefore, it can be concluded that recognising multiparenthood would be the optimal means of ensuring the best interests of the child, particularly in relation to the right to the child’s identity. To substantiate this conclusion, the judge refers to case law that has recognized socioaffectivity as a valid means of ensuring the best interests of the child. She cites, among other decisions, a judgment of the Supreme Court of Justice (STC 1976 of 2019) as an example of this approach. In this case, the court ruled in favour of a teenage girl who had requested not to be compelled to undergo a DNA test to ascertain her genetic lineage. The rationale behind this decision was that the girl had no intention of ascertaining whether the plaintiff was her biological father, as she considered the man who had registered her as his daughter and provided her with care to be her father.
These considerations are aligned with the principle of the best interests of the child, which, as stated in this judgment, must be a primary consideration. In this context, the judge posits that in this case it is necessary to assume “responsible paternity and maternity.” The judge highlighted that the pregnant woman’s biological role as a mother, evidenced by her contribution “of her body to gestate and give birth to a new human being, or her induced pregnancy at a fertility clinic with the intention of becoming the plaintiff’s father”, must be acknowledged. Similarly, the plaintiff’s biological role as a father must also be recognised. “This is in alignment with the biological and social reality surrounding them. This is also of paramount importance, as it is the most effective means of ensuring the best interests of the child are upheld”.
The relationship with constitutional precedent
The judgment presents an insightful examination of the compliance with the criteria set forth in the Constitutional Court’s Decision T-968 of 2009 (commonly mislabeled “requirements” by the majority of doctrine and jurisprudence), ultimately concluding that the claim in question cannot be substantiated on those grounds.
In particular, it makes reference to three specific cases:
- It is a fallacy to consider male homosexuality a disease or an “infertility problem.” For this reason, the claim of infertility was not substantiated, despite the assertion made by the representative of the Public Prosecutor’s Office, who is tasked with safeguarding the interests of the child.
- It cannot be affirmed that the woman acted altruistically, as it was demonstrated that she received compensation (in this case, 1,800,000 COP, approximately 413 USD per month, which exceeds the minimum wage in Colombia) for a period of twelve months (which exceeds the gestational period). This is particularly evident for the judge because the woman in question was unable to define the term ‘altruism’ when questioned. Furthermore, it has been demonstrated that she was experiencing economic hardship, which led her to utilise the ‘compensation’ for expenses unrelated to medical costs. Additionally, before the agreement’s conclusion, she was unaware of the identity of the biological father and had no information about him.
- The identity of the parties has also not been preserved.
This will probably be an isolated case in Colombia, but it remains an important decision in terms of women’s rights.
*Professor, Externado de Colombia University
