The limbo of surrogacy in Colombia: ‘What is not forbidden is permitted’

“Surrogate mothers are sort of like nannies. They know the kids aren’t theirs, but still do everything they can to care for and protect them,” said bioethics lawyer María Fernanda Pérez to describe surrogacy. In the European Union, it’s seen as reproductive exploitation, and will soon fall under human trafficking laws when coercion is involved. In Colombia, two proposed bills to regulate the practice were shelved in the early stages of congressional debate. “What is not forbidden is permitted,” said Lina Morales of Colombia’s Legal Network.

Lawyers like Pérez are authorized to handle civil proceedings to change parents’ names on birth certificates for a fee that starts at $7,000. “The amount paid to the surrogate mothers varies,” said Pérez. Feminist groups and women offering surrogacy services online say that many agree to less than $3,000.

Lorena Restrepo (a pseudonym) charges at least $7,500 and a monthly stipend during the pregnancy. “I’ve heard a clinic might pay more, but I live in Pasto [southern Colombia] and can’t leave my kids alone for 10 months,” she said. This 33-year-old single mother supports her three children on a little more than the minimum wage ($255). “But I’ve also heard that some people pay much less, and sometimes refuse to pay at all.” Restrepo placed an ad a little over a month ago on Facebook and has already received 10 offers, but none that are over $5,000. “I’m looking to give my kids a better life and celebrate my little girl’s 15th birthday,” she said.

Under Colombia’s current laws, Restrepo can rent out her womb to any local or foreign couple willing to pay for it. There are no price controls, conditions or prerequisites. No one here associates surrogacy with the reproductive exploitation found in countries such as Spain, France, Germany and Italy.

María Cristina Hurtado is a feminist lawyer and political scientist who says this legal limbo is all about money. “This multinational business generates almost as much money as pornography. The key players involved are assisted reproduction clinics and couples in the U.S. and Europe who buy children for $60,000, which is way above what the Colombians involved are paid.” Hurtado, a key opponent of surrogacy in Colombia, finds it concerning that the left supports it in the name of feminism. “I voted for a government that opposes neoliberal policies and prioritizes human rights, especially those of women and children. Opposing surrogacy is not a moral stance — it’s about defending the rights of women and children.”

In 2022, the Constitutional Court called on Congress to address the issue and resolve the legal vacuum, while also considering an outright ban. However, the two proposed bills only aimed to regulate rather than prohibit the practice. Both bills had similar objectives but differed regarding restrictions on the surrogate mothers’ age and the nationality of the adoptive parents. Two foreign couples who used a Colombian surrogate declined to be interviewed by EL PAÍS upon learning that the article would present opposing viewpoints.

In Colombia, the process starts by selecting a surrogate mother after receiving a request from a couple unable to conceive. This can be done through a clinic or private lawyers like Pérez. “We’ve selected surrogates many times through word of mouth. I never sugarcoat things — I’m really upfront with them,” said Pérez. “I let them know that there are risks involved, just like with any other pregnancy. And if the intended parents request an abortion because of health issues with the fetus, they need to go through with it because the genetic material isn’t hers — it belongs to them.” The Constitutional Court provided only a few guidelines for regulation, and one was that any new law should ensure the eggs did not belong to the surrogate. Everything else was left open for legislators to hash out.

One bill proposed by Alejandro Ocampo of the Pacto Histórico ruling government coalition, allowed eggs donated by the surrogate mother. “This reflects the ignorance of these decision makers. They rush to regulate something without having an adequate understanding,” said Hurtado. Ocampo told EL PAÍS that this aspect of his proposed bill “was not a mistake, but we had to revise that first version.” He plans to introduce a new bill that also allows this practice. “The ideal would be for surrogacy not to exist at all. But the Court has backed us into a corner. No one wants this mess because it could cost them votes. It’s a contentious issue, and we aim to restrict the practice as much as we can. This legal uncertainty is frustrating. But what should we do? Wait until someone dies, or a child is trafficked or prostituted? Colombia cannot become a child factory and the only option is to restrict it as much as possible. That was what the Court asked of us.” Judge José Fernando Reyes, president of the Constitutional Court, refutes Ocampo’s allegations. “The Court simply requested an end to the legal vacuum that benefits financial interests. Blaming the Court for this undermines democracy. Social issues like these should be debated in Congress, along with the hundred or so other legislative requests we’ve made.”

Lina Morales is afraid that everything will take a long time to unfold. In the meantime, surrogacy contracts will dictate everything. “Contracts often sneak in things that are just plain unconstitutional, like forcing someone to have an abortion. Lots of women who agree to these terms aren’t even aware of their rights. It’s all because of the lack of regulations in the country, which sadly makes Colombia even more appealing to people seeking a surrogate here.”

Olatz Mendiola is president of Son Nuestros Hijos, an association of families who have children through surrogacy. She also supports regulating the practice and wants definitive guarantees in the law. Mendiola rejects the “wombs for rent” term: “It’s very offensive to the women who have carried our daughters and sons.” Mendiola says she doesn’t know the typical cost of surrogacy in Latin America, but that payment is needed for the women who choose to donate their ability to conceive and for the medical professionals who care for them. Compensation is justified by the work and risk that comes with pregnancy. “Surrogacy is a form of assisted reproduction that helps those unable to carry a child,” she said. “Adoption safeguards minors, and should be a consideration for everyone, not just those who have trouble conceiving.”

“They view women as vessels”

Selection of a surrogate woman can take months, says María Fernanda Pérez. The candidates undergo “exhaustive” tests: two psychological tests, medical exams and lab tests… Next, I engage two companies to assess the level of risk and check for criminal records. We ask whether the spouses are in agreement with he surrogacy, and ask bosses if they are responsible employees.” After checking that the adoptive parents also have no criminal record, a notary certifies the child’s name change along with a DNA test that the surrogate has no genetic ties to the newborn. “It may not seem like a dream job, but women working as maids and similar jobs often agree to do it and know what they’re getting into. I make that very clear to them.” Criminal lawyer Helena Hernández thinks surrogacy is a “perverse cocktail,” and the people engaged in view women as “vessels or containers. It’s a fallacy to think that things we dislike undermine our dignity as a person. Being a service worker doesn’t diminish my worth or objectify me as a woman. Renting wombs essentially turns women into a commodity. You can’t separate a womb from a woman.”

Regarding consent, Hernández bluntly said, “The supposed consent can’t outweigh human dignity. The same goes for organ sales. There may be organs we don’t need, but we don’t allow organ harvesting to avoid exploitation of vulnerable people. When it involves women and children, the stakes are even higher. Public policy is made for the majority, not the minority. Especially when the minority is a privileged elite.”

“I don’t want money — I want a house”

Gladys Gómez (a pseudonym) doesn’t want money. “I want a house, so I can live in peace,” she said. Gómez is from Cali and has never been a mother. She works at whatever job is available. Sometimes it’s in a beauty parlor, other times she works a prostitute. “I wish they would adopt me too, even if it’s just to clean the house. I can’t even afford a soda right now. Honestly, only a miracle would make me give up on this idea,” she said. In Colombia, 37.6% of women don’t earn enough to buy the basic food basket.

One thing everyone we interviewed agrees on is that Colombia is becoming a popular option for couples looking for surrogates, particularly for foreigners. Pérez has handled at least 80 cases in the past four years and said, “it’s steadily growing.” This doesn’t surprise Helena Hernández. “Colombia has all the right business conditions — low prices and plenty of vulnerable women. It’s tough for a couple not to have kids, but parenthood isn’t a right. No one should have the right to buy a baby.”

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