The practice of gestational substitution, known as “surrogacy,” has been the subject of debate and reflection in the legal sphere in Brazil. It is a complex and sensitive topic that involves ethical, social, and legal issues.

Gestational surrogacy, also known as “compassionate surrogacy,” is an assisted reproduction technique in which a woman (the surrogate) agrees to carry out a pregnancy on behalf of another person or couple (the intended parents). In this process, the surrogate has no genetic link to the baby because in vitro fertilization (IVF) is used to create the embryos.

IVF is a medical procedure that involves fertilizing an egg with sperm in a laboratory, resulting in an embryo. This embryo is then transferred to the uterus of the surrogate, who carries the pregnancy to term, allowing couples with conception difficulties or single women to have biological children even if they cannot conceive naturally.

In Brazil, surrogacy is not regulated by specific legislation, which creates legal gaps and uncertainties. Therefore, the analysis of this subject must be done considering existing norms and court interpretations.

Regarding the legal aspects of surrogacy in Brazil, there are different understandings and positions. Some argue that the practice is illegal and violates fundamental principles such as human dignity and the unavailability of the human body. They argue that gestational surrogacy can be a form of exploitation of a woman’s body and raise issues related to the commodification of the uterus and the possibility of human trafficking.

On the other hand, some defend the possibility of surrogacy as long as adequate regulation guarantees the protection of the rights of the parties involved, such as the surrogate, the infertile couple, and the future child. They believe an absolute prohibition of the practice may lead to clandestine arrangements without legal control or protection.

In this context, some courts have issued favorable decisions regarding gestational surrogacy, as long as there is a family relationship between the surrogate and the benefiting couple, excluding the figure of a contracted surrogate. These decisions have been based on applying the principle of the child’s best interests, aiming to ensure the right to parentage and family life.

It is important to note that even without specific legislation, surrogacy in Brazil has been the subject of discussion in the National Congress, with the presentation of bills aiming to regulate the practice and establish clear guidelines for its implementation.

However, some court decisions have been issued, reflecting different positions and understandings, as reflected in the following decisions:

Recognition of socio-affective motherhood: Some courts have recognized socio-affective motherhood, which means the emotional bond established between the woman who wishes to be a mother and the child conceived through gestational surrogacy, regardless of biological ties. These decisions have been based on the principle of the best interests of the child.

Exclusion of the contracted surrogate: In several decisions, the courts have opposed the figure of the contracted surrogate, understanding that the commercialization of the uterus is illegal and contrary to ethical and human dignity principles. These decisions emphasize the importance of a family relationship between the surrogate and the benefiting couple.

Judicial authorization: In specific cases where natural reproduction or assisted reproductive techniques are proven to be impossible, some courts have authorized gestational surrogacy, as long as the principles of protecting the rights of the parties involved and the best interests of the child are respected.

Civil registration of the unborn child: The courts have allowed the civil registration of the unborn child conceived through gestational surrogacy, recognizing the right to parentage, if the will of the parties involved is proven and legal and constitutional principles are respected.

In this scenario, it is crucial for society and competent authorities to promote a broad and in-depth debate on surrogacy in Brazil, considering ethical, legal, and social aspects, in order to seek solutions that balance the protection of the rights of the parties involved and the promotion of the well-being of children conceived through this assisted reproduction technique, while still granting the right to parenthood to couples who cannot conceive naturally.

You can obtain more info about this topic using the following medical databases to find relevant articles on surrogacy in Brazil:

PubMed: https://pubmed.ncbi.nlm.nih.gov/

Google Scholar: https://scholar.google.com/

SciELO (Scientific Electronic Library Online): https://www.scielo.org/

LILACS (Latin American and Caribbean Health Sciences Literature): https://lilacs.bvsalud.org/en/