MATERNIDAD SUBROGADA COMO FUENTE DE FILIACIÓN

Abstract

This research paper analyzes surrogacy as an assisted reproduction technique and its viability as a legitimate source of filiation in Colombia. Through a comparative legal approach, the regulatory systems of Spain, Uruguay, and the state of California (United States) are studied in order to identify regulatory models that can be adapted to the Colombian context.

First, surrogacy is conceptualized, along with its modalities (partial, total, altruistic, commercial, and fragmented) and the ethical, legal, and social implications it entails. Filiation is examined from three perspectives: biological, legal, and intentional, with the latter being proposed as a valid alternative in cases of surrogacy. Likewise, the importance of guaranteeing the best interests of the child and their right to identity is highlighted as guiding principles in any regulation of this practice.

The comparative analysis reveals divergent positions: Spain prohibits surrogacy and considers related contracts null and void, basing its position on the protection of human dignity and the principle of “mater semper certa est.” Uruguay allows surrogacy only for altruistic purposes and under strict conditions, such as a family relationship between the surrogate mother and the commissioning mother. In contrast, California offers a broad and flexible legal framework, recognizing filiation by contractual intent and allowing both altruistic and commercial surrogacy.