BUENOS AIRES — The desire to become a parent has replaced blood ties as the defining element of parenthood. Today, the mother or father is one who is committed to being parent, who wants to raise a child, and with a certainty rooted in a prior, freely attained and informed consent and regardless of whether or not the child is a product of his or her own genes. The most important thing now— the guiding principle — is the desire to have children.
Following an initial, pioneering case with a couple in 2013, surrogate pregnancies have increased in Argentina. Genetic data are no longer a prerequisite in creating juridical links between a person and a child born of the aforementioned technique, but rather the formal consent given by a person or couple.
The wish to procreate must be made manifest through prior, informed, free and formal consent, and all those who wish to become parents this way must make a clear and precise declaration of their wish to do so. Thus the procreational wish is a fundamental human right projected into people’s lives, where the state must not intervene in such a way as to impede its free exercise.
Thus, a gestating woman is a biological mother, but not every pregnant woman is going to be a mother. The term mother thus now legally refers to a decision within the framework of the constitution, adopted subjectively by a woman or a person perceiving his gender identity as a man with female reproductive organs.
Society advances faster than laws.
The Supreme Court points out that “the law must not be interpreted historically, but taking into account the new conditions and needs of society.” The Civil and Commercial Code now includes legislation that permits marriage between persons of the same sex, and expressly indicates that no norm can be interpreted or applied in the sense of limiting or restricting the equality of rights and obligations between participants in a marriage or the effects of that marriage, be it between a heterosexual or homosexual couple (Article 402).
Today, thanks to a criminal and administrative court ruling for the City of Buenos Aires, informed consent is now the crucial element for obtaining the first birth document in the name of non-procreating parents. The paths are becoming shorter and simpler. Children recently born through surrogate gestation now obtain a birth certificate within a couple of weeks in the name of their parents.
Society generally advances faster than laws, and we must prepare for what is coming instead of trying to frame realities into norms that belong to the past.
