Colombia surrogacy ban: will the new bill survive?
A proposal to ban all surrogacy in Colombia raises an obvious concern for Australians hoping to build a family there. But a bill before Congress is not the same thing as an enforceable law. Even if it secures enough votes, a further question remains: can it survive constitutional scrutiny?
That distinction matters. Colombia’s Constitutional Court has recognised the significance of intended parents’ reproductive intentions and repeatedly called for surrogacy regulation. A blanket prohibition appears to pull in the opposite direction.
Stephen Page’s assessment is that the proposal faces substantial obstacles, both politically and legally. That is not a guarantee that nothing will change. It is a reason to look beyond the alarming headline and examine what the bill proposes, the constitutional principles involved and the uncertainty facing intended parents.
How Colombia’s Constitutional Court Approaches Surrogacy
At the heart of Colombia’s approach is the concept of procreative will. In straightforward terms, this means the intention to bring a child into the world and become that child’s parent.
In the Constitutional Court decisions discussed by Page, that intention distinguishes the intended parents from the surrogate. The intended parents undertake the arrangement because they want to become parents. The surrogate carries the pregnancy without intending to become the child’s parent.
This is an important distinction. It recognises that parenthood through surrogacy cannot be understood solely by identifying who gives birth. The purpose of the arrangement and the intentions of those involved also matter.
The court has repeatedly called for legislation to regulate surrogacy. However, the comprehensive regulatory framework it has sought has remained absent in the developments considered here.
A call for regulation is not a call for prohibition. Regulation establishes conditions and safeguards for an activity. A blanket ban removes the activity altogether. That difference is central to the legal difficulty facing the proposed ban.
Repeated Bills, but No Settled Legislative Answer
Colombia has seen numerous attempts to ban, restrict or regulate surrogacy. Page estimates that approximately 18 bills have gone before Congress over the years, including a government proposal aimed at regulation. None of those proposals, in the history he describes, became law.
The recent sequence illustrates the unsettled position:
- A proposal sought to prohibit commercial surrogacy, framing it around concerns about trafficking.
- That proposal was amended but ultimately lapsed around an election.
- A subsequent bill was introduced and then withdrawn.
- Another proposal followed, seeking to prohibit all surrogacy, not merely commercial arrangements.
The precise distinction between these proposals matters. A prohibition on commercial surrogacy concerns arrangements involving payment beyond what the applicable law permits. A prohibition on all surrogacy would also capture altruistic arrangements.
Likewise, concerns about trafficking should not automatically be treated as proof that every commercial surrogacy arrangement constitutes trafficking. Legislation needs to address the conduct and risks involved, rather than collapse different issues into a single label.
Is the Proposed Ban Primarily Political?
A Colombian colleague described an earlier proposal to Page as performative: a political statement unlikely to become law.
The Australian comparison is familiar. A minor party can introduce a bill that appeals strongly to its supporters. Without sufficient parliamentary support, however, introducing it does not mean it has a realistic path to enactment.
That helps explain Page’s scepticism about the latest proposal. The history of unsuccessful bills provides context, although it cannot determine the outcome of another parliamentary process.
There are therefore two separate hurdles:
- Passage through Congress: Does the proposal have the political support required to become law?
- Constitutional survival: If enacted, can its restrictions withstand a legal challenge?
Clearing the first hurdle would not necessarily clear the second. For intended parents, confusing those stages can produce either unnecessary panic or misplaced confidence.
What Costa Rica’s IVF Ban Adds to the Debate
The broader human rights context helps explain why a complete prohibition may face difficulties.
Costa Rica previously banned IVF, treating embryos as human beings with corresponding rights. Couples affected by that prohibition brought proceedings before the Inter-American Court of Human Rights.
Their argument linked access to assisted reproductive treatment with the right to privacy and the ability to found a family. The court upheld that argument, and Costa Rica’s prohibition could not stand.
The significance was practical as well as legal. People who needed assisted reproductive treatment should not be prevented from having children simply because the state adopted an ideological objection to the treatment.
Page also identifies subsequent human rights reasoning as supporting protection where surrogacy is the method needed to form a family. He sees Colombia’s Constitutional Court as taking a corresponding approach to reproductive rights.
This does not mean that every surrogacy arrangement must be permitted without conditions. It means that an outright prohibition raises a different and more fundamental question than carefully designed regulation.
Why a Blanket Surrogacy Ban May Not Survive
Page’s central objection is the apparent conflict between the proposed prohibition and the Constitutional Court’s recognition of constitutional protection for surrogacy.
If that protection applies, Congress cannot simply legislate as though it does not exist. A law prohibiting every form of surrogacy would need to withstand scrutiny against those constitutional principles.
A regulatory approach could instead address questions such as:
- Whether commercial surrogacy should be permitted.
- Whether only altruistic arrangements should be allowed.
- Whether foreign intended parents should be eligible.
- What conditions should govern permitted arrangements.
These are consequential choices. Restricting access for foreigners, for example, could materially affect Australians even without a complete ban.
Page considers the blanket approach a blunt instrument where a more carefully constructed framework is needed. His assessment, however, is expressly that of an Australian lawyer examining Colombian court decisions from outside the jurisdiction. It is not a prediction of a guaranteed court outcome.
What This Means for Australian Intended Parents
Colombia is identified in Page’s account as the second most popular overseas surrogacy destination for Australians. Proposed changes therefore have implications for a substantial group of intended parents.
The sensible response is neither to assume that a ban is already in force nor to dismiss the proposal because earlier bills failed.
Instead, intended parents need advice that distinguishes the proposal’s parliamentary status from the law currently governing their arrangement. They also need to understand whether amendments could affect foreign participation, commercial arrangements or the steps remaining in their particular journey.
The wider lesson applies beyond Colombia. Different destinations carry different legal risks, as explored in Page Provan’s discussion of US surrogacy risks for Australian intended parents. A destination’s popularity does not remove the need for jurisdiction-specific advice.
For travel-related developments, the Australian Government’s current Colombia travel advice provides a separate, useful reference. It should complement, not replace, advice about Colombian surrogacy law and Australian legal requirements.
The Bottom Line: Regulation and Prohibition Are Different
The proposed Colombia surrogacy ban faces two unresolved questions: whether it will become law and whether it would survive a constitutional challenge.
Page’s view is that the legislative history and constitutional decisions give substantial reasons for doubt. Nevertheless, political uncertainty remains, and a restrictive regulatory scheme could affect Australians even if a complete prohibition proves unsustainable.
The practical priority is current, individualised advice. Intended parents need to understand both the legal position today and how a proposed change could affect their path to parenthood.
About Stephen Page
Stephen Page is a leading Australian surrogacy lawyer, a multi-award-winning practitioner and an accredited family law specialist at Page Provan. His work focuses on family and fertility law, including the complex legal issues facing Australians pursuing surrogacy at home and overseas.
