Indagación en la Figura de la Maternidad Subrogada Respecto al Incumplimiento de las Obligaciones Contractuales

Abstract

Assisted reproductive techniques (ART) are defined as "a set of biomedical methods that lead to facilitate or replace the natural biological processes that develop during human procreation" (Santamaría, L., 2000). Procedure is considered essential for the progress of the social conglomerate in the area of ​​human sexual reproduction, however, for what reason to categorize its relevance? Well, the fundamental reason is that ART represents a novel modality originating from biology sciences, scientific and technological solutions that provide a solution to the difficulty that arises when fertilization is not achieved naturally due to physical or genetic causes. In this research, the ART modality known as "surrogate motherhood" was analyzed, in which two types of subjects intervene: natural persons who are the "surrogate mother", who carries out a gestation commissioned by the "principal" and After its completion, he must deliver the minor, renouncing his maternal rights to the contracting party. Fertility clinics or human reproduction centers conceived as legal entities with the function of giving fertilization or genetic indications for the gestation process may also appear as "intervening" if the parties previously agree. However, is this practice contemplated in the Colombian legal system? The answer to this is negative, because in Colombia legislative silence has prevailed regarding this type of atypical contract without finding the mandatory content, prohibitions and effects of said legal business specifically indicated in current regulations. In this regard, the constitutional court through T-968 of 2009 has stated that this practice is legitimate, however the absence of normative regulation forges the lack of legal security for the parties immersed in this type of agreement because stipulations could be incurred abusive. That is why a normative proposal was made for the regulation of the agreement and the possibilities against a breach of the contractual obligations in said agreement.