by Natalia Rueda Vallejo*
In a ruling issued by the Superior Tribunal of Bogotá on April 1, 2025, pertaining to a surrogacy case, several issues are addressed concerning the illegality of certain practices within the Colombian context, which is characterized by complete deregulation.
General Conclusions of the Ruling
The Tribunal concludes, inter alia, that the birth mother is legally the mother – in accordance with prevailing Colombian legislation – and, therefore, her name cannot be omitted from the birth registry. Moreover, the gestational carrier’s declaration, pursuant to a surrogacy agreement, that she is not the mother cannot be admitted as a basis for evading parental responsibility. Consequently, the omission of the mother from the birth registry of the child infringes upon the child’s rights to identity and nationality. It also constitutes a contractual disposition of civil status and identity, which is prohibited in Colombia.
Of particular interest is the reiteration that the gestational process is vital in the generation of a person. The Tribunal underscores that the biological process cannot occur without the gestational woman, necessitating recognition of her importance. This discourse is particularly pertinent in a context marked by symbolic violence evident in narratives that seek to justify or promote this practice, often trivializing the gestational process and minimizing its physical, emotional, cultural, and social implications. These narratives often embrace a form of “discursive colonialism” that promotes genetic determinism.
This ruling also confirms that, even if surrogacy is tolerated in Colombia, there are existing reference norms that are being disregarded and contravened by the industry, notaries, and judges. These actors, behaving as silent bystanders, fail to conduct a substantive review of the acts that would lead to the verification of compliance with constitutional and legal reference norms, particularly those that ensure respect for the dignity of children. In this regard, the Tribunal clarifies that notaries must attend to the fact of birth and register the mother’s name, as this component can only be modified by judicial order.
Adult-centered Arrangements
These arrangements are characterized by an adult-centric focus, prioritizing the rights of the commissioning parents rather than those of the created individual. The Tribunal also explicitly addresses this point. Furthermore, it confirms that the debate has been skewed, with the notion that “gestating does not make you a mother” overlooking the situation of the person created under the auspices of this practice, who is unaware of the economic transactions and who is the ultimate object of disposition, the “product”. And, while it is clear that a woman may not be emotionally connected, the child born only knows that woman as a mother, the separation agreed in the contract causes a trauma of devastating and irreversible effects that does not heal with the simple will of the intended parents, since the biological response to that situation is the panic and terror of having been abandoned, of being in a completely unknown context and without reference points already known during gestation.
These contracts contradict the public order
Moreover, in an unprecedented exercise in Colombia, the Tribunal explicitly addresses the analysis of the contract, its clauses, and its dynamics.
The analysis of the clauses concludes that, in these arrangements, even when characterized as altruistic, remuneration is stipulated, which entails paying for the generation of a human being. This implies a real risk of human trafficking, as well as the objectification and commodification of individuals, and contravenes imperative norms or norms of public order and the dignity of human beings, which are existing limitations in the Colombian legal system.
Furthermore, the Tribunal states that impoverished women are exploited (as was the gestational carrier in the case, who was enrolled in the subsidized healthcare system and had previously been a gestational carrier in another process). This fact alone warrants the presumption of “a state of necessity from which one cannot profit to satisfy the needs of others.”
Analyzing the clauses, provisions are found that dehumanize, objectify, and instrumentalize the woman, and severely limit several of her human rights and fundamental freedoms, including the free development of personality, autonomy, personal and family privacy, health, freedom, and locomotion, as well as sexual and reproductive rights.
Using different clauses as an example, the Court shows that these are asymmetrical contracts, characterized by a strong imbalance and where the supposed autonomy of the woman is limited. In this sense, while her autonomy is limited in an inadmissible way in any other context, the exclusion of liability is agreed, for example, for any damage she suffers “on the occasion of pregnancy, childbirth, loss and/or interruption (…) and the delivery of the child(ren) that she conceives.”
In conclusion, this is a well-reasoned ruling that highlights some of the problems arising from the misinterpretation of legal norms, particularly the scope of private autonomy and freedoms, which, in these contexts, are portrayed as unlimited and exercised without self-responsibility.
*Professor, Externado de Colombia University
