1. GENERAL LEGAL FRAMEWORK

In Colombia there is a complete legal vacuum in relation to surrogacy, with no specific regulation of the issue. The practice is neither expressly prohibited nor is it permitted, whether executed directly or through the use of agencies or intermediaries. It is also unclear whether international treaties are to be applied to the practice or not. There is also a lack of data – official, informal or academic – on the number of treatments initiated for the purposes of entering into surrogacy agreements, and on surrogacies effectively executed. However, it seems to be a recurring phenomenon, pursued informally through direct contacts, or arranged through social networks by women who advertise their availability to provide surrogacy services for others. There are also Colombian clinics that offer surrogacy services, in addition to fertility treatments, which handle the legal aspects of the arrangements. Likewise, surrogacy agencies continue to practice in Colombia and abroad. Despite of the lack of statistical information, the statement of purpose of Bill 263 of 2020, states that, from March 2020 to September 2020, the visa office of the Foreign Affairs Ministry received 16 requests from foreigners who intended to pick up babies who had been born through surrogacy carried out in Colombia with the assistance of fertility clinics.

Colombia generally has an uncertain and precarious regulation of Assisted Human Reproductive Techniques (“ART”). Law 1751 of 2015, establishes that the right to health is fundamental, autonomous and inalienable, and is governed by the principles of progressivity (art. 6) and comprehensiveness (art. 8). Law 1953 of 2019, established “the guidelines for the development of the public policy of prevention of infertility and its treatment within the parameters of reproductive health”, and ordered the national government to adopt a public policy on infertility (art. 3) that will ensure the right to form a family. It also ordered the regulation of access to infertility treatments based on a sexual and reproductive rights approach (art. 5).

In response, the Ministry of Health and Social Protection, through Resolution 228 of 2020, adopted the Public Policy of Prevention and Treatment of Infertility, emphasising infertility (art. 2, Ley 1953 of 2019) and not the ART in themselves.