Los principales desafíos jurídicos que enfrentan los Contratos de maternidad subrogada en Colombia

Abstract

This research focuses on the analysis of a legal phenomenon of increasing relevance in the country. The practice of surrogacy, or gestational surrogacy, being unregulated in Colombian law, generates uncertainty and opens the door to various academic debates due to the legal challenges that may arise. Through a qualitative approach, the research seeks to answer the problem question: What are the main legal challenges facing surrogacy contracts in Colombia? Although Article 42 of the Political Constitution of Colombia allows for natural procreation or assisted reproduction, Colombia has not made significant progress in regulating the practice of surrogacy, which has led to judicial conflicts and compromised fundamental rights of the parties involved in this atypical contract. The methodology used includes a thorough review of existing literature on surrogacy, as well as an analysis of the jurisprudence developed by the Colombian Constitutional Court from ruling T-968 of 2009 to ruling T-127 of 2024. Additionally, audiovisual material from television programs presenting reports on the increasing number of women offering their wombs as gestational mothers was utilized. The information collected was organized into thematic categories covering legal and social aspects of the phenomenon studied. The data analysis shows significant patterns, confirming the proposed hypothesis. Furthermore, it addresses the surrogacy contract as an atypical contract and compares the Colombian regulatory framework with that of other countries that have regulated this practice, identifying its possible application in the Colombian context should regulation be achieved. The interpretation of the results recommends the urgent need to legislate around this practice and concludes that adequate regulation could provide legal certainty and protect the fundamental rights involved for the child, the gestational mother, and the commissioning parents. Therefore, a regulatory proposal is presented as a solution alternative. Moreover, it emphasizes the importance of fostering informed dialogue about surrogacy through awareness and education campaigns directed by academia to the general public.