Berenice Cerra & Guillermina Pappier[1]
In Argentina, the state does not regulate pregnancy practice. Courts tend to fill the blankApproved the altruistic and non -compensated pregnancy arrangements, especially for heterosexual couples with infertility. For the last decade, applicants have enjoyed high success rates, mainly due to the application of international human rights law. However, in October 2024, the Argentine Supreme Court issued one decision This marked a significant shift in its posture.
The Court rejected the requirement of the fatherhood of a male homosexual couple who had a child through substitution, despite the clear and consistent intention of the substitute not to take on parental rights or responsibilities. Together with the planned parents, they asked for legal recognition of the couple as the only parents of the child, ensuring that both of their names appeared on the birth certificate. However, the Court has confirmed that, under the current Argentinean law, the mother of birth (ie the substitute) must be legally recognized as a parent, stressing that the substitution remains unmistakable in the country’s legal framework. This decision has led to a problematic scenario characterized by a lack of judicial certainty that restricts certain guaranteed rights.
The recent decision ignored three critical issues that justify attention. First, with the rigorous interpretation of the provisions of the Argentine political and commercial code on the disease with assisted human reproduction techniques, the court did not examine the living realities for same -sex couples, which endangers the enjoyment of substantial equality. While the same legal standard applies in all cases, this formal approach disproportionately affects male couples of the same sex, who are necessarily based on substitution to become biological parents. Heterosexual couples who have infertility have historically benefited from the judicial recognition of their pursuit of their pursuit, proving a implicit bias in legal interpretation. As a result, the decision not only reinforces existing inequalities but also perpetuates discrimination against same -sex couples by refusing the same parental recognition given to others in similar conditions.
A second concern is the court’s failure to examine the rights of the child born of pregnancy. In the case, the child had lived and has been increasing for years by his parents. However, the court found that the non -granting of legal recognition to the child’s parents did not violate the principle of the child’s interest. The Court failed to apply for applicable law on this matter. THE Convention on the Rights of the Child (CRC), with a constitutional hierarchy in Argentina, guarantees the principle of the child’s interests, stipulating that in every law, public or private initiative and in every problematic situation, the child’s interests must be taken into account. Article 3 of the CRC states: “In all actions related to children, whether they are assumed by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the interests of the child will be a primary way.”
Therefore best interest of the child The designation describes a formal procedure with strict procedural safeguards designed to determine the child’s best interest in critical decisions affecting the child. It should facilitate the appropriate participation of children without discrimination, include decision -making officers with relevant areas of expertise and balance all relevant factors to evaluate the best choice. However, in this case, when the court interprets this procedure arbitrarily, even without considering the child’s desire to remain with the parents who have put him, he undermines the fundamental rights of all parties involved, especially the interests of the child, the protection of privacy, family life and family life.
Finally, the limited discussion on the will of production is problematic. The person who was born the child expressed his desire not to become a parent both during pregnancy and after the child was born. THE Actual Court of Human Rightsin the case Artavia Murillo et al. (“In vitro fertilization”) against Costa Rica (2012), considers that you become a parent is part of the right to privacy and in this case includes the decision whether or not to become a mother or father in the genetic or biological sense. Maternity is vital to the free development of a woman’s personality and family right is recognized in Article 17 of American statement of human rights.
In addition, the right to private life guaranteed in Article 11 of the Convention and the right to personal freedom protected by Article 7 of the same treaty relates to reproductive autonomy and access to reproductive services. The court’s ruling, in addition to Judge Maqueda’s vote, did not examine the woman’s decision not to become a parent. Even before pregnancy began, the substitute clearly expressed her decision not to become the mother of the child and that was the arrangement with the couple. In the first court case, a meeting was held with all parties and expressed clearly that he did not want to be the mother of the child. The imposition of motherhood affects women’s rights on private freedom and reproductive autonomy.
In short, the ruling of the Argentine Supreme Court represents a significant failure to recognize the substitution, especially for male couples of the same sex. With the rigorous interpretation of the provisions of the Civil and Commercial Code, the Court perpetuates stereotypes, inequality and discrimination against the same sex parents in the legal context. The decision does not sufficiently examine the real realities of these families, undermining their rights and well -being of children who are lifted to such households. In addition, the court’s supervision of the substitute’s intentions and the consequences of the child’s identity and family relationships raises serious concerns about the observance of international human rights standards, in particular the contract for the rights of the child. Even when this decision shows a clear reflux of rights in Argentina, it is also an opportunity to ignite a debate on the replacement in Congress, but also an appeal to watch out for the need to monitor gender and equality in order to achieve justice.
References
[1] Berenice Cerra, Master in Human Righs and LLM. (she/her), he is an international advisor. Initially from Argentina, her work focuses on gender policies, nutrition systems and international human rights law.
Guillermina Pappier, LL.M. (she/her) is a member of the second year at the O’Neill Institute for national and global health law. Initially, also from Argentina, her work focuses on reproductive health and international human rights law.
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