The Global Surrogacy Minefield: Why “Due Diligence” is Your Most Important Contract

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Building a family through surrogacy is a journey defined by immense hope, but as a legal professional, I must often ground that hope in a hard truth: you are navigating a dense, global thicket of conflicting laws. One of the most common questions I hear from Intended Parents is why the law isn’t uniform if the medical procedure is the same everywhere. The answer is not found in a medical textbook; it lies in the deep-seated cultural, ethical, and religious values that shape a nation’s identity. Surrogacy touches on the most fundamental definitions of “family” and “parentage,” and because of this, every country approaches it through a unique, and often shifting, lens.

When we discuss “due diligence,” we are really talking about understanding the specific legal “DNA” of your destination. For years, the international community relied on established principles like the Roman Law doctrine of Mater semper certa est, the mother is always certain. While some modern frameworks, most notably in Georgia, have evolved to recognize “parental intent” from day one, other regions have recently moved in the opposite direction, reasserting the rights of the birth mother in ways that catch many parents off guard.

Navigating Jurisdictions in Flux: The New Realities of Argentina and Colombia

The landscape of global surrogacy is currently in a state of significant transition. For instance, Georgia remains a model of legislative clarity, having explicitly permitted surrogacy for heterosexual couples. In this jurisdiction, intended parents are recognized as the legal parents from the moment of conception. However, even in such a stable environment, the “contract” is only a piece of the puzzle. We have seen cases where surrogates claimed that they did not understand the gravity of the documents they signed due to poor translation. To prevent this, we implement a multi-layered protection system that insists on independent legal advisors and court-certified translations, ensuring that “informed consent” is a legal reality rather than a formality.

Contrast this stability with the recent shifts in Latin America. Argentina, once considered a “hidden gem” due to administrative shortcuts in Buenos Aires, saw a fundamental reset by its Supreme Court in late 2024. Under the current interpretation of Article 562 of the Civil and Commercial Code, the surrogate must now be recorded as the “birth mother” on the initial birth certificate. This creates an immediate “legal puzzle” for foreign parents, as the system remains in a state of limbo regarding the removal of the surrogate’s name if the baby is no longer physically within Argentine borders.

Similarly, in Colombia, the focus has shifted toward a “Constitutional Shield” meant to prevent mercenary surrogacy. Following a key ruling in April 2025, the woman who gives birth must be listed as the legal mother. To achieve a “clean” birth certificate, parents must now navigate a year-long judicial process known as Impugnación de la Maternidad. This is no longer a guaranteed rubber stamp; courts are increasingly demanding proof that the child has secured a second nationality before they will consider severing the surrogate’s legal ties.

Vetting for Stability and the Silent Risk of Language

Intended parents often focus on a surrogate’s medical health, but from a legal perspective, we are screening for contractual stability. A contract is only valid if the person signing it is deemed capable and fit to do so without duress. If our investigators suspect economic coercion, such as a woman being pressured by a spouse or debt collectors, that candidate becomes a massive legal liability. Beyond economics, we must evaluate “detachment capability.” A surrogate without a stable home or support system is at a higher risk for emotional instability, which can lead to a “change of heart” and years of litigation in foreign courts. Furthermore, the role of the surrogate’s partner is often overlooked; in many countries, a husband is legally presumed to be the father of any child his wife bears. Without his documented cooperation, an intended father may find himself in a custody battle with a stranger.

The Financial Integrity of the Program

A common misconception in international surrogacy is that a signed contract freezes time and economics. In reality, the legal strength of a program is inextricably tied to its economic transparency and its ability to adapt to external shocks. In volatile markets particularly across Latin America, program fees are initially based on the exchange rates and third-party pricing prevailing at the time of signing. However, while the scope of the services remains unchanged, the actual market cost of those services is determined by an array of third parties, including clinics, laboratories, and government agencies.

The most complex variable in this equation is the surrogate mother’s compensation. We must account for the reality that a pregnancy lasts nine months, a window of time where significant inflation can erode the real value of the surrogate’s agreed-upon support. In countries experiencing high inflation, such as Argentina, a payment that seemed fair in the first trimester may no longer cover the surrogate’s basic needs by the third. From a legal and ethical standpoint, it is vital to have mechanisms in place that allow for adjustments based on these economic shifts. This is not a “hidden fee,” but rather a safeguard to ensure the surrogate is treated with dignity and remains financially stable throughout her journey.

Furthermore, we must address the risk of “contractual drift.” There are rare but difficult cases where a surrogate, facing her own economic pressures, may attempt to ignore the signed agreement and request additional funds while the pregnancy is pending. This is where the intersection of law and finance is most critical. 

Managing the “Legal Limbo” and Emerging Risks

Surrogacy is a dynamic process, and the legal framework must be reactive to change. If a birth country does not recognize the Intended Parents and the home country does not recognize the foreign birth certificate, the child can become “stateless.” This “legal limbo” is the ultimate nightmare for any parent.

Choosing a destination based solely on cost or clinic reviews without a deep dive into the law exposes a family to the ultimate nightmare: “legal limbo.” This is a state where the birth country doesn’t recognize you as parents and your home country doesn’t recognize the birth certificate, potentially leaving a child stateless. Surrogacy is a powerful path to parenthood, but from a lawyer’s perspective, the contract is only as strong as the “code” of the country it is written in. Protecting your future child starts long before the pregnancy begins; it lives within the relentless due diligence of the law.

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