Fabiana Quainiidioma españolidioma francesingles idiomaidioma brasilitaliano idioma

Fabiana Marcela Quaini
Attorney

International LawQr code lexaustralis

CABA - Buenos Aires  -  Mendoza

 


Blogger fabiana Quainigoogle +logo youtobe quaini  linkedintwiter quaini


 

Home Ι About us Ι Contact Ι Spanish Version Ι Videos Ι Press Ι Child Abduction Ι Service of Process Ι Divorce Ι Surrogacy Ι LGBT ΙMap

 


Visit our web page http://www.quaini.com, where you will get more information and you will be update about relevant  family law news ande decisions in Argentina

SURROGACY

Our firm deals with International family law, we have 3 main areas, international kidnapping, international adoptions and surrogacy, local and international. We assist you to start your family using surrogacy, egg donation, embryo donation, and sperm donation.  We also represent clients concerning ART law in Argentina.  We have the experience, we handled first ART and surrogacy cases in Argentina, enjoy life, we will take care about your legal matters concerning surrogacy, egg donation. Remember that an experienced ART attorney will give you the best advice and guidance available for what you need.

International Surrogacy

 

If you live in Argentina and you decide to have your child under surrogacy agreements and birth takes place in United States, India, Ukraine, Mexico, Russia, we will advise you and we will work together with ART fellows in other countries to make sure all agreements to be signed, court decisions, mirror decisions and birth certificates to be issued.  We also take care about any visa, immigration step you can need for registration of the birth certificates in Argentina

 

Surrogacy in Argentina

 

Read article in PubMed.

Uterine subrogation: medical and legal aspects of the first legally supported case in Argentina].

A woman aged 38 was referred to this center for surrogacy treatment, after subtotal ablation of her uterus due to a severe postpartum hemorrhage. Her hormonal profiles and ovarian structure were normal. The husband proved fertile and semen analysis was normal. The carrier, a woman 39 years old, fertile with two children of her own, and a long bonding friendship with the patient. After hormonal stimulation with gonadotropins and GnRH antagonist, six mature oocytes were obtained. These originated four embryos after in vitro fertilization, three of which were transferred to the carrier, achieving a singleton pregnancy which led to the birth of a normal child, now more than a year old. A lawsuit was filed after birth requesting the baby be registered with the biological parents’ name. The judge granted the request based on evidence and testimonies provided, international jurisprudence history and specification in Article 19 of the Argentine Constitution: "No inhabitant of the Nation shall be obliged to do what the law does not demand .nor be deprived of what it does not prohibit". This is an almost ideal example of the proceedings in a case of subrogation. However, we must always bear in mind the fact that in our country there is as yet no regulatory framework for these treatments, therefore there is a high probability of conflict.

 

 

Legal Frame in Argentina

There is no a special law as regards the neither ARTS nor surrogacy in Argentina. It is not forbidden by any law either. However our Civil Code in article 242 indicates that maternity will be established, even without explicit acknowledgment, by the proof of birth and the identity of the child. The rule that applies here is the Latin expression “mater semper certa est”.

There is a new law concerning health insurance companies to pay for ARTS.

Registration requires a medical certificate delivered by the person who has attended childbirth and this certificate attributes the maternity and child identification for the newborn.

This means that, accordingly to our law, mother is the woman who had the child. A medical certificate is also required for registration in the “Registro Civil”.

Article 19 of the Argentine Constitution provides that the private actions done by any person which neither offend public order or morality, nor injure the rights of a third party, are only reserved to God and are exempted from the authority of judges. Nobody in Argentina shall be obliged to do what the law does not request or deprived of what it is not forbidden.

The Convention on the Rights of the Child in its article 3 provides that all actions concerning children should have as their main consideration the best interest of the child. Article 7 in its first paragraph also indicates that any child shall be registered immediately after birth and shall have from it, the right to a name, to acquire a nationality and, as far as possible to know their parents and to be cared for by them. Article 8 paragraph 1 indicates that States that signed the Convention, undertake the duty of respecting the rights of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. Paragraph 2 establishes that when a child is illegally deprived of some or all the elements of their identity, States Parties shall provide appropriate assistance and protection with a view to re-establishing speedily his or her identity. The Pact of San Jose, Costa Rica in Article 17 also statues that the family is the natural and fundamental group unit of society and it is entitles to protection by society and the State. Article 19 states that every child has the right to be protected as a minor by his family, the whole society and the State.

Under legal bases of our Constitution, Convention on the Rights of the Child and The Pact of San Jose, Costa Rica, surrogacy agreements should be considered legal and kids should be registered under the name of the intended parents, sometimes biological parents, sometimes it could be an egg or sperm donor.

 

Jurisprudence:  Leading case in surrogacy Argentina. National Civil Court N° 86. Judge Carmen Bacigalupo

Case “J.D. G. M. M. por N.N. s/inscripción de nacimiento”. Case number 38.316/2012. Date June 18, 2013. Reference: Microjuris.com MJ-JU-M-79552-AR

 

The Facts:

A heterosexual married couple could not have its babies in a natural pregnancy. The wife could not be pregnant or if she was she would have had a serious risk for her life. She had thrombophilia factor V Laden.

She got pregnant on despite of her illnesses, but she suffered from internal hemorrhage and she underwent emergency surgery for a subtotal hysterectomy, her uterus was removed but she could conserve her ovaries.

She could have her own eggs and with the sperms of her husband in Halitus Medical Center. Doctor Sergio Pasqualini could obtain some embryos under assisted reproductive technology. The only way for husband and wife to be parents at this time was to transfer the embryos into a surrogate womb.

A very close friend of the couple offered them her womb to transfer the embryos and to carry the maternity process.

There wasn’t any law about surrogacy in Argentina. There is no express prohibition in law concerning surrogacy in general; and any arrangement that could be done would be under general law principles, maybe void or unenforceable in the whole o partial agreement. The main obligation of the surrogate mother to surrender the children to the intending parents following the birth would be a risk, and the fact to register the baby with the names of the intended parents had at this time an uncertain future.

Halitus Medical Center was the only fertilization center that agreed to transfer the embryos to a surrogate mother. Embryos were transferred to the surrogate mother and the baby was born on April 19th, 2012. Medical birth certificate had the name of the surrogate mother. The name of the child was not mentioned in the medical birth certificate. Private hospital also accepted the surrogacy practice and as it was the first time a surrogacy was done no name for the child was written.

 

The Lawsuit

A lawsuit was filed in court after the birth of the baby. It was requested to register the child in the “Registro Civil” under the names of the intended parents, which in this case were also the biological parents. Baby had no birth certificate, only the hospital medical certification with the name of the surrogate as the mother.

 

The decision

Motion was accepted and, consequently, the registration of the first birth certificate was ordered as the daughter of her intended parents.

The parents had a biological inability to conceive, they chose the surrogacy technique, with their own genetic material that was implanted in a womb that belonged to another woman, who first conducted the pregnancy and the subsequent delivery of the child.

The will of the intended parents replaced section 242 of the Civil Code where maternity shall be established, even without explicit acknowledgment, by the proof of birth and the identity of the child. The rule that applies here is the Latin expression “mater semper certa est”. As from this decision, this principle will not always be applied in every situation.

The express intention parents had to have a child with their own biological material, carrying the embryos on the womb of a third party for the pregnancy and subsequent birth, was the main fact court considered for its decision.

The rule “mater semper certa est” has in this case, a lack of the will of the intended parents to assume rights and duties and to become mother and father.

The intention to become parents, means the express intention to give birth to a child, to give love, to take care about education and growing up, to assume duties and rights in the parent-child relationship, where such intention is its typical source in the reproductive technology area.

When it is not possible to have a child under natural circumstances, we shall assume a relationship that is not based on biological basis but in the building of socio-emotional links. Without such intention to become parents to have a child, we cannot have such kind of links. The legal system of justice must supply with an answer to those situations.

Surrogate mother also ratified in court the facts concerning herself in the motion and that she did not receive any fees to carry the embryos to be born. She acknowledged she had received all medical fees, transportation fees and she still had health insurance paid by the intended parents.

State Attorney, Official Counsel of Minor and Attorney of the Civil Registrar supplied the court with their legal opinions. All of them were in favor of the recognition of the surrogacy and the registration of the first birth certificate on behalf of the intended and in this case also biological parents.

 

Legal Opinion of the State Attorney

In this case there was no law regarding the surrogacy; so there was a legal specific regulations vacuum, but not a lack of other judicial source of law. There were no other similar cases in Argentina, doctrine did not know at this time how to face surrogacy, and therefore an answer had to be searched in other sources of the law.

The fact that mother is the woman giving birth, even when she did not use her own egg but one that belongs to another woman who facilitates the birth under reproductive techniques, cannot be conclusive specially from the perspective of the constitutional principles involved at the time to define the status of the newborn when considering the best interest of the child.

The truth must prevail over everything in order to make the legal filiation be coincident with the real one. Parents should also undertake the commitment to tell their daughter about her pregnancy and her birth.

 

Comments

Judge acknowledged that there is still no legal regulation to enable or prohibiting such practice (surrogacy) that the plaintiffs used to become father and mother with their own biological material, through a surrogacy womb.

Judge referred to the new law concerning health plan on assisted reproduction, which has recently been approved in the National Congress; section 2 regulates the scope of the medical assisted reproduction that reaches the "procedures and techniques performed with medical assistance achieving a pregnancy. Techniques embrace the low and high complexity that may include the donation of gametes or embryos.

The use of these techniques is considerably widened generating new traditional and no traditional families. It is not only for the case of biological impossibility to access to maternity for heterosexual couples -married or not- as this case, but it also enables paternity and maternity that was inconceivable years ago, such as maternity or paternity in cases of sterility, single mothers, single fathers and homosexual couples.

Judge noted that the technique of surrogacy used has been done under the lines of the bill that regulates surrogacy, which somehow and even if the bill is approved or not, it will undoubtedly operate as a guideline for the request.

The main element in determining the parenthood of those children born through assisted human reproduction techniques is the will of the intended parents and the surrogate mother in the process.

Judge also referred to exequatur of foreign decisions (Ukraine) or the issues of argentine passports (India) that were requested in Argentina concerning surrogacy cases that happened abroad.

The Judge highlights that even when the legal concept of the best interest of the child is unknown; it is also true that this child would not be in this world if surrogacy by one or two people who fervently wanted its existence would not have happened.

Watch our  video

 















IAFL logo reunite logo aaarta logo abalogo


 

This website is only designed for general information. The information presented at this web site shall not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
Copyright © 2016 Fabiana Quaini. All rights reserved.