He was drawn up by Francesca Nardi, a Canadian and American lawyer specializing in human rights and global health, with particular emphasis on reproductive technologies, Laura Dragnic, a lawyer of Chile dedicated to promoting social and reproductive justice. and Guillermina Pappier, Argentinean lawyer specializing in reproductive rights and biotechnology. The authors are linked to the O’Neill Institute for the National and World Law on Health, Health and Human Rights Center at the Georgetown Legal Universities Center.
Substitution has long been an issue of hot button for both morals and politics. Despite the accusations by opponents that substitution is the “sale of children” and exploits women, there has been one steady upward trend in the number of people using substitution to start or develop their families and shows no perspective for deceleration.
Substitution of pregnancy or the practice of using a genetically non -related third party with pregnancy were highly was criticized to have been “unmistakable” and a “wild west” industry. In recent years, however, some countries around the world and states within the United States have passed legislation that regulates or restricts practice.
This week, Chile joined these countries when a bi -monthly bill was introduced From the Congress of Chile, which will prohibit the replacement of pregnancy in Chile and introduced civil and criminal penalties, including cancellation of any contract for substitution (leaving all parties and their predicted children without legal protection) and criminal penalties for the parties involved in substitution and any service or clinic that promotes practice.
In addition to the sweeping nature of the bill in Chile, it is an example of an increasing phenomenon of efforts to limit or regulate the substitution that extends throughout the political spectrum, as the bill supports members of all Chilean political parties.
Previously, many of the efforts to limit access to other reproductive technologies such as IVF in the United States had come from conservative actors, many aligned with the anti -abortion agenda that opposes the creation (and possible destruction). While some right -wing governments have led the accusation to take extreme actions to ban replacement, including through extreme bans in countries such as Italy; More generally progressive jurisdictions over the issues of reproductive rights have increasingly taken action to limit it (including Spain and Sweden), proving that there are polarizing substitution elements beyond the creation of embryos that are of concern to the lines of the parties. In addition, some countries that have had historically more permissible replacement laws have now revised their legislation, In some cases they establish extremely restrictive laws.
The Chilean bill underlines not only the emerging bilateral nature of substitution concerns, but also many of the traditional arguments presented in the opposition, which claim eg. The personal identity of the resulting children is the marketing and sale of children and is a form of “slavery”.
While these arguments are not new, the Chilean regulation is trying to deal with them with incredibly wide bans, including “transferring eggs for reproductive purposes to a health unit under any circumstances”. This type of language may risk scanning many other assisted reproductive procedures in the prohibition provided for by this bill. This could include not only some IVF protocols, especially those related to donor eggs (which are required by many infertility pairs) but also mutual IVF- a technique used by lesbian couples with which a partner is sperm with the fetus of another partner and transfers the child to term.
Chile does not currently have a specific law governing the assisted reproduction techniques. While there are some administrative regulations, they do not cover the various methods available in patients in Chile. Instead of promoting a separate and up -to -date discussion, this new bill takes a blunt and exclusive moral attitude on a very complex issue that requires thorough discussion and careful regulation.
In addition, the provisions of this bill could conflict with the regional and international human rights obligations of Chile. For example, it may violate the right in private and family life, which includes the right to become a biological parent protected by Article 11 of ACHR and Article 17 of the ICCPR. This is especially important for people who cannot become parents without reproductive assistance, including gay couples, individuals and heterosexual couples with health conditions that make them unable to have children without medical intervention. Since Chile has made significant progress in the rights of LGBTQI+, especially after the Abian Court’s ruling in the Atala Riffo case, the bill could represent a remarkable failure, limiting parental care for same -sex couples.
In addition, the proposed legislation introduces significant gender inequalities. While sperm donation is not prohibited or regulated in Chile, the bill specifically aims to transport women’s gametes, leaving male gametes who are not affected and not regulated. This creates an unjustified difference between gender in regulating reproductive technologies, undermining the principles of equality and non -discrimination. and providing a possible basis for a requirement of unconstitutionality.
The bill also explicitly considers substitution as inherently opposed to the child’s interests, contradictory Preceded by the Chilean Courtswhere family courts have recognized parental rights in cases of substitution based on the interests of the child. In addition, this legal gap is placed by children born through assisted reproduction, substitutes and parents in a vulnerable position, as their legal status could be called into question if these procedures are prohibited.
In this context, it is striking that legislative efforts focus on the prohibition of specific practices and not on the development of an integrated regulatory framework based on rights for assisted reproduction technologies.
This bill is an example of the kind of excessive legislative language that can endanger critical access to assisted reproductive technologies, even when the declared goal of the legislators is to only aim to replace their regulations. In a global context where assisted reproductive technologies are increasingly under attack, legislators should adopt a subtle and targeted approach to regulating substitution, ensuring that they do not accidentally limit critical access to other technologies needed by patients.
