Omisión legislativa y daño por responsabilidad estatal: análisis de la gestación por sustitución frente a los derechos fundamentales de la niñez en Colombia

Abstract

This research analyzes the extracontractual liability of the Colombian State for legislative omission in the regulation of surrogacy contracts. Based on the existing legal vacuum, it examines how the delay in legislating on this practice creates a scenario of legal uncertainty that directly affects the fundamental rights of children born through this assisted reproduction technique. The study begins with a conceptual and normative framework that identifies the constitutive elements of State liability for service failure, with emphasis on the figure of legislative omission. Subsequently, it reviews five exhortative rulings of the Constitutional Court, in which the Congress of the Republic has been urged to legislate on the matter, without a regulatory framework having been enacted to date. Such non-compliance produces practical consequences: difficulties in civil registration, access to nationality, determination of parentage, healthcare and social security, and other rights associated with the comprehensive protection of children. Likewise, a comparative study of foreign legislations—particularly in countries such as Spain, México, Argentina, Italy, and Germany— highlights applicable international standards and the different models of surrogacy regulation. Finally, the study concludes that the absence of legislation in Colombia not only disregards the repeated orders of the Constitutional Court but also constitutes unlawful harm to children, by depriving them of effective protection guarantees, which in turn activates State liability for legislative omission.