New Civil Code could trivialize surrogacy in Brazil

The opening for the normalization of surrogacy is another controversial point in the proposal for the new Civil Code, which should be processed in the Senate from April onwards and is being prepared by a commission of jurists convened by the President of the House, Rodrigo Pacheco.

In addition to opening the door to abortion, gender ideology, the subversion of the concept of marriage, the rupture of parental authority and even the notion of a multispecies family, the draft report formulated by the commission of jurists also introduces into the Civil Code the possibility of “temporary cession of the uterus”. The proposed article 1.629-L says:

The temporary transfer of the uterus is permitted in cases where pregnancy is not possible due to natural causes or in cases of medical contraindication.

Even though it is established, in the following article (1.629-M), that surrogacy “cannot be of a profitable or commercial nature”, the difficulty of controlling commercialization once the practice is legalized worries jurists.

Regina Beatriz Tavares da Silva, president of the Family and Succession Law Association (Adfas) and PhD in Civil Law from USP, highlights that there is not even a sanction provided for if there is a violation of the non-commercialization rule.

The jurist explains that the provisions of the Senate report on surrogacy are similar in certain points to a resolution of the Federal Council of Medicine (CFM), in proposing that the temporary transfer of the uterus be made only for reasons of infertility or medical contraindication pregnancy, which the CFM document already predicted.

However, she adds, the proposal for the new Civil Code imposes far fewer limitations on the practice of surrogacy than the CFM, without making other requirements that the medical body has established, such as the obligation for the pregnant woman to have at least one living child. and a certain degree of kinship with the woman who will legally become the mother.

Lawyer Carlos Rebouças, a specialist in Civil and Family Law, considers that, even with the provisions of article 1.629-M, the provision on temporary transfer of the uterus is “a stimulus for the commercialization of this type of ‘body rental'”.

Proposal of the new Civil Code to widely allow surrogacy brings psychological and social risks

Rebouças warns that the practice “will bring legal and mainly psychological consequences in the medium term”. “Both the person who carries the child in the uterus, that is, the one who gives the uterus, and the person to whom the uterus was given, will develop affection for the child generated, and socio-affectivity is a factor considered preponderant today in Law of Family, to define custody, paternity and even family name on the identity document”, he says.

For him, “the legal proceedings that may arise questioning paternity, maternity, both genetic and socio-affective, will be inevitable, and will raise questions that are difficult to judge.” “It’s something that violates human nature itself, this generation of other people’s children by third parties.”

The concern becomes even greater, says Rebouças, “with the advent of polyaffective relationships and registrations of children as being the daughters of more than one mother and more than one father” – which is another prediction in the proposal for the new Civil Code.

In fact, in article 1.617-B, the report states that “socio-affection does not exclude or limit the authority of natural parents, all of whom are responsible for the support, care and care of their children in the case of multiparenting”. Rebouças defines this set of proposals as “a real confusion that will bring no benefit to the entity to which the State has a Constitutional obligation to give special protection: the family”.

Regina Beatriz reinforces that the psychological effects of surrogacy for the mother who gestated the child can be heavy. “The transferring woman, even more so as a third party, with no kinship relationship with the authors of the parental project, may suffer with the handing over of the child. I say ‘suffer’ in terms of violation of her personality rights. After all, she is the one who carried in her womb a human being, from whom she will be removed at birth”, he states.