Phaedra Venturini
(Special for ANALYSIS)
It is becoming more common to see stories of couples who are looking for children and resort to solidarity gestation – popularly known as surrogacy – to start a family. These cases are mostly of foreigners and it is not common for this to happen in Argentina, but a case arose in the city of Paraná that set a precedent in judicial matters, but which also raises a curtain of discrimination, economic interests and lack of application of current regulations.
In August of this year, the Federal Court No. 2 of Paraná ruled in favor of Leandro Laurencena and Rubén Báñez so that their health insurance companies would cover the fertilization procedure for a woman, a friend of the couple, to bear their future child. This is an unprecedented ruling in the justice system of the capital of Entre Ríos, but this is not the first time that the couple has achieved a milestone of this caliber in the city. They previously obtained authorization from the Civil Registry to legally register the unborn child as theirs.
The desire to be parents, dependent on the Entre Ríos Justice
Leandro and Rubén are engineers, they started dating in 2011, in 2021 they made the decision to get married and a year later they began to investigate the options available to start a family with the method of supportive gestation. “A friend of ours offered to be the surrogate and it was the most incredible act of love we could receive,” the couple told ANALYSIS“For us it was all very natural, because she made us feel that way. You could see that she did it out of love, out of a desire of her own, and that was very nice.”
They automatically began the legal process and procedures to obtain authorization from the Entre Ríos Courts. When asked about their experience in the Paraná Courts, they recalled: “The judicial process was long, lasting approximately six months. Luckily, the judge we had in Family Court No. 3 was very respectful and professional and, after analyzing all the documentation and evidence we presented regarding the relationship with the surrogate mother and her genuine desire to accompany us, she presented a favorable ruling for us to carry out the surrogacy process. This is the first case of a homosexual couple in Entre Ríos.” The engineers emphasized that this ruling gave them the feeling of “having won one more right, for us and for other couples who may want to carry out the same process in the future in the province.”
However, they warned ANALYSIS Unfortunately, during the process they did not meet with empathetic professionals: “In our opinion, they were not prepared or trained to participate in this process, perhaps due to their own convictions or lack of knowledge on this subject.” For Leandro and Rubén, these workers from one of the Interdisciplinary Technical Teams of the Courts “put at risk, at times, the possibility of reaching a favorable sentence, they did not make us feel comfortable at all, with out-of-place questions both to us and to the surrogate mother… they presented a report that had no bibliographical support whatsoever.” For the couple, these workers judged their desires to be parents and their sexuality in the face of possible paternity: “They even went so far as to ask us if we were not afraid that our son or daughter would be discriminated against at school, just for wanting to be parents and have a child in this way.”
Non-compliance with the law and the prepaid health insurance business
Virginia León, one of the lawyers who represented the couple, explained to ANÁLISIS that an appeal was filed against two health insurance companies, since their clients had different medical coverage. The reason for this judicial instance was that both companies denied coverage because Surrogacy is not contemplated as such in Law No. 26,862 on Assisted Fertilization, in force in our country since 2013.
It should be noted that this regulation aims to “guarantee comprehensive access to medically assisted reproduction procedures.” The law understands this last concept to include all procedures and techniques that require medical assistance to achieve a pregnancy. Likewise, Resolution 1045/2018 determines that social works must fully cover the medications required for reproduction. “This practice is done but, as it is not expressly provided for in the law, social works and prepaid medical companies understand that they are not obliged to cover it,” explained the lawyer and added: “In Argentina there are already more than 80 cases of solidarity gestation, but most of them are paid for by the people who undergo assisted human reproduction techniques.” Along these lines, she highlighted that same-sex couples have the same right to access a highly complex human fertilization technique. However, the legal vacuum causes prepaid and social works to refuse to cover this practice.
The favourable ruling came two months after the process had started and the health insurance companies were ordered to pay for the fertility treatment like any other couple. However, the engineers highlighted: “We later found that, based on our case, the health insurance companies informed the fertility specialists not to make any more medical requests to file appeals in cases of surrogacy. This seems to us to be a situation of discrimination not only on the part of the health insurance companies, but also on the part of the doctors who accept these agreements. Commercially it is convenient for them, but they leave aside all the non-heterosexual couples, like us, who have the desire to form a family with this method.” Along these lines, they warned: “All the couples that come after us will find more obstacles to ensure that the fertility treatment is covered as it should be and as dictated by law. All the fertility clinics are acting in this way and this line of advice from the health insurance companies has gained strength in recent times.”
Solidarity gestation: a practice with prejudices
Although surrogacy or solidarity gestation has a long history, especially after celebrities in the world of entertainment opted for this option to form their families, couples who choose this option are still judged. “There is a lack of knowledge and a lot of prejudice,” said Virginia, “everyone can have their opinion and it is respected, but we believe that solidarity gestation is a practice that allows people who cannot bear children – regardless of their gender – to form a family and have children. As long as it is a process where the people involved give their consent, it is a valid assisted human reproduction technique.”
For their part, Leandro and Rubén stated: “It is difficult to remain calm when there is a very strong desire in the middle, but also the possibility of carrying it out or not depends on other people who do not always have the good will to open their minds and see that there are other parenting options” and added: “We were judged at some point in this whole process for wanting to be parents this way and not by adopting, but the reality is that everyone lives it as they can and want”. In this context, the couple clarified that they considered adoption and attended informational talks, but “from the start they made it clear to us that the times are very long and we saw that the adoption system itself has many things to improve, so that children do not spend years in homes waiting for a family, when there are many who have the desire to adopt”.
For the engineers, the process they are going through is an important precedent for other non-heterosexual couples who wish to become parents through shared gestation. They stated: “Today it is not just the two of us, but many of us who are happily and enthusiastically awaiting the arrival of this much-desired baby. It is worth it and we hope that our case can help many other couples who want to take this path.”
