Note: This article has been updated on August 28, 2024 to include new information and insights. We recommend reading the updated content for the most accurate and current details.
Georgia and Tim’s Story
Georgia is a principal at a school. She suffered early-stage cervical cancer and then significant adenomyosis and endometriosis for many years, conditions which exacerbated a long and unsuccessful IVF journey in Australia. Her husband Tim is an electrician with a mining company. Around 18 months ago they chose to pursue surrogacy in Buenos Aires given the favourable court rulings around who is listed on the birth certificate (more about that later). Argentina is also popular given the availability of donors from European backgrounds.
Anxious to minimise their time away from home, the couple engaged with Growing Families months before their son’s due date in Buenos Aires, intent on gaining all the professional support they could to minimise the timeframe for the issue of Australian citizenship and an emergency passport.
Armed with reams of paperwork in advance, their son Hamish was born prematurely in March this year, spending his first two weeks in a Buenos Aires neonatal unit. It would be 136 days until the city’s Civil Registry issued Hamish a birth certificate. The fact that the Civil Registry has a legal obligation of 40 days to issue such documents seems a moot point.
Without any ID, Hamish was denied his two-month vaccination by local hospitals until the Australian embassy stepped in a month later. Another Australian couple were barred from checking into any hotel because their six-week-old twins had no identification.
It is not just a few families feeling helpless. The Buenos Aires authorities have placed a freeze on issuing birth certificates to all newborns via surrogacy since April, leaving scores of families from around the world with undocumented infants. Despite multiple international conventions to which Argentina is a signatory declaring that a birth identity is a fundamental right, as the weeks and months drag on, more and more vulnerable newborns remain without an identity. Australians, New Zealanders, Argentinians, Austrian, French and Irish nationals are just some of the nationalities affected.
But this debacle is just the latest in a series of problems haunting the surrogacy sector over the last decade. Discomfort with huge influxes of foreign intended parents lead to countries such as India, Thailand and Cambodia banning the process around a decade ago. When the Ukraine war broke out in 2022, it decimated that country’s surrogacy landscape. And in Greece and Georgia, nations with attractive surrogacy legislation for foreigners, the wholesale import of foreign women to carry as surrogates led to crises and government intervention in 2023.
As intended parents deserted Ukraine in their hundreds, Argentina became the latest surrogacy destination targeted by entrepreneurial operators. So, what was Argentina’s attraction?
Surrogacy Landscape in Argentina
A court ruling in the City of Buenos Aires back in 2017, designed to assist a phalanx of local gay couples to be recognised as parents, set a precedent, allowing newborns via surrogacy to be automatically registered as a child of the intended parents, without any judicial or state control, as long as certain pre-conditions were met. The rules applied whether you were heterosexual or gay; partnered or single. In each case, the intended parents alone were listed on the birth certificate.
Entrepreneurs eager for environments which allowed such simple processes and a large population to recruit could not help themselves. The first foreign surrogacy companies started investing in 2021. While is unlawful to operate a surrogacy agency in Argentina, or to compensate surrogates beyond expenses, agencies who are recruiting and managing surrogates simply registered their businesses elsewhere and declined to specify how much a surrogate might be compensated.
Within two years, dozens of foreign agents were offering Argentinian programs. Not their own – they were selling in programs running locally in Buenos Aires. The lack of surrogacy laws was something of a plus – no red tape to jump through.
By early 2024, not only Buenos Aires, but other large Argentine cities (which required court-processes to recognize parentage) were seeing a huge rise in apparently altruistic surrogacy births to foreigners.
In this somewhat conservative, Catholic-influenced nation, the alarm was raised by senior court officials. In February 2024, Susana Medina, the lead judge of Argentina’s Women Judges Association met with someone fairly influential on the global stage – her fellow countryman Jorge Mario Bergoglio – ordained over a decade earlier as Pope Francis.
Medina strongly recommended surrogacy be classified as a crime of ‘trafficking for reproductive exploitation’. Children carried by an Argentinian surrogate should not have foreign intended parents appear on the birth certificate, she argued. It was not what Buenos Aires 2017 judgement was designed for. Medina was clear that contracts signed by foreigners who had never visited Argentina to enter such an arrangement should be declared null and void; advertising should be prohibited; and all intermediaries pursued and punished.
A month later, Buenos Aires Civil Registry suddenly raised the bar to issuing birth certificates. All non-Spanish speakers needed to find a certified translator who spoke their language to verify all documents. Given the ruling was retrospective, those with babes in arms had to locate new translators, notaries, re-submit documents and wait. For Hamish’s parents Georgia and Tim, it led to another fortnight’s delay. And another. And another.
Argentina’s Attitude Towards Surrogacy
The Argentinian-born Pontiff was also clearly listening, for in April, in his Declaration Dignitas Infinita, he used his position to condemn surrogacy, writing “With this practice, the woman disassociates herself from the child growing inside her and becomes a mere means at the service of profit or the arbitrary desire of others. This is in complete contradiction with the fundamental dignity of every human being.“
His declaration caused consternation amongst both surrogates and surrogacy advocates globally – myself included – though few recalled that the Jesuit Pope was Argentine born.
In the same month a surrogacy scandal erupted 700 kilometres north-west in the Argentine city of Cordoba. An ‘anonymous tip-off ‘was made in regard to 14 women employed as surrogates. Given there were no surrogacy laws available, Córdoba prosecutors instead launched an investigation under suspicion of ‘human trafficking ‘. The Office of the Prosecutor for Trafficking and Exploitation of Persons (PROTEX). became involved.
Given the explosion in demand for Argentine surrogacy, it was perhaps no surprise that there were now unethical operators taking any surrogate they could find. One Cordoba surrogate who came forward had buried her first husband and with her second partner in prison, had accepted an attractive sum to carry for a couple, despite enduring a stillbirth for one of her own children. The money she earned would help her renovate her house. But since the surrogacy birth she was suffering from hypertension, mastitis, incontinence and bleeding.
Two Córdoba IVF clinics were searched. Prosecutors alleged that lawyers were falsely declaring to the courts that each surrogate was known to the recipient parents and hid the financial compensation. Even the psychologists involved in surrogate screening were drawn into the web.
Prosecutors were now warning that recruiting such women, especially when vulnerable and in poverty, amounted to a criminal endeavour. Pope Francis’ recent declaration was cited as evidence of foul play.
Argentina, proudly nationalistic, suddenly saw the reality – as agencies took advantage of a loophole in the capital’s regulations, the nation’s vulnerable women were at risk.
When Cambodia outlawed surrogacy on trafficking grounds a decade ago, the authorities response was draconian. Pregnant and just birthed surrogates were arrested and given a choice. They could either keep the child they had carried and be pardoned, or go to gaol. In Thailand when the country’s newly installed military junta took power, parents with newborns were detained at the airport. In many cases, foreign parents could leave only if accompanied by the surrogate who carried their child.
While in Buenos Aires there is no court process required, the Civil Registry does need to approve surrogacy agreements after the fact before a Birth Certificate can be issued. In the absence of specific surrogacy law, authorities had just one means to discourage the practice – slow down or stop the issuance of birth certificates.
New Policies
A local judge acted fast. On 4 June, a new policy was announced. Immigration & Civil Registry authorities were to note that Birth Certificates conferred no legal relationship. A blanket ruling was published – no child purportedly born via surrogacy could leave the city in which they were born unless an Argentine birth certificate and local passport had been granted.
On 22 July, the Civil Registry clarified its new approach. It would no longer accept surrogacy registrations without a prior court approval, in line with the rest of the country. (Lawyers are estimating that such approvals will take at least ten weeks to process but can be commenced during the pregnancy).
Surrogacy advocates and local parents accused the authorities of acting illegally. A group of local gay parents lodged an appeal. Being Argentina, it is anyone’s guess how long that appeal will take to wend its way through the court system.
Meanwhile Buenos Aires’ surrogacy lawyers are in a difficult position. They could apply for a birth certificate for each case individually through the court, demanding such be issued, but to do so might add months of red tape. Having seen the Cordoba prosecutors arrest a local surrogacy lawyer, perhaps it was better to lie low – take the wait and see approach. Surely the authorities would come around.
Future Uncertainties
On 9 August, Hamish and all infants born before 4 June finally received birth certificates. Each with a note attached to iterate that the document ‘does not constitute a legal relationship’. Five days later, Hamish and his parents arrived in Australia, though the Argentinian and Chilean border controls were relentless.
For births between 4 June and 22 July, the Civil Registry has been instructed to enter only the surrogate on the birth certificate. If the surrogate is named, lawyers argue that she must then explicitly renounce her prior consents to name the intended parents. But at this stage, many families are beyond worrying about the legal arguments. They just want a pathway to bring their infants home.
Some lawyers insist that for infants born after 22 July, the new rules are set. The birth certificate will show the surrogate and biological father. The lawyer can then, as occurs in Mexico and Colombia, file a motion to obtain a new birth certificate removing the surrogate.
In the early months of this debacle, surrogacy agencies hoped that all would be resolved quickly and processes could return to normal. Now over 60 stateless newborns are caught in this awful conundrum, and it is becoming clearer that judicial authorities may be sending a message: commercial surrogacy arrangements, foreign agencies and hordes of nameless foreigners engaging with local Argentinians to create a family are not welcome.
