LEGAL OPINION ON FERTILITY TREATMENT

REGULATIONS IN COLOMBIA

The law firm ________________________ has been practicing and duly regulated in
Colombia since _____.

This memorandum of opinion has been prepared to contemplate the legal process of
international intended parents seeking a gestational carrier or surrogate mother to carry
their biological child and return to their country of domicile.

Surrogacy

In practice, assisted reproduction including IVF, egg and sperm donation, and surrogacy
have been established for many years in Colombia. The National Constitution of
Colombia (1991) does not govern assisted reproductive technologies or surrogacy but
does state in ​Chapter II: Social, Economic and Cultural Rights on the ​Family​, in Article
42-6: “​Children born in or out of wedlock, adopted and procreated naturally or with
scientific assistance, have equal rights and duties. The law will regulate the responsible
offspring.”

Colombian law does not disallow surrogacy and, as a result, it is considered to be

allowed.

The magistrate Luis Ernesto Vargas, president of the Colombian Constitutional Court, in
his comments in the case law / jurisprudence that exists on the subject in The
Constitutional Court’s Sentence T 968 of 2009, expresses his views:

In the Colombian legal system there is no express prohibition for the realization of this
type of agreements or agreements. However, regarding the techniques of assisted
reproduction, within which surrogate or surrogate motherhood is located, the doctrine
has considered that they are legitimated legally, under Article 42-6 of the Constitution,
which provides that "Children born in Marriage or outside it, adopted or procreated
naturally or with scientific assistance, has equal rights and duties.”

He further acknowledges that:

Within this context, the need for "exhaustive regulation and compliance with a series of
requirements and conditions" has been demonstrated, such as the following: (i) that
women have physiological problems to conceive; (ii) that the gametes required for
conception are not provided by the pregnant woman (who facilitates her womb); (iii) that
the pregnant woman does not have a lucrative goal as motive, but that of helping other
people; (iv) that the pregnant woman meets a series of requirements such as adulthood,
psychophysical health, having children, etc .; (v) the pregnant woman must undergo the
relevant examinations before, during and after pregnancy, as well as psychological
evaluations; (vi) that the identity of the parties be preserved; (vii) that the pregnant
woman, once signed the informed consent, and implanted the reproductive material or
gametes, cannot retract the delivery of the minor; (viii) that the biological parents cannot
refuse the child under any circumstances; (ix) that the death of the biological parents
before birth does not leave the minor unprotected; and (x) that the pregnant woman
could only terminate the pregnancy by medical prescription, among others.
Further, the judicial comments in case for the Supreme Court of Justice in the case of
“Challenge of Extramarital Paternity” of 2017 shows that:
Resolution 8430 of 1993 issued by the Ministry of Health, by which "the scientific,
technical and administrative standards for health research are established", states that
"informed consent is understood as the written agreement, whereby the research
subject or, where appropriate, his legal representative, authorizes his participation in the
investigation, with full knowledge of the nature of the procedures, benefits and risks to
which he will submit, with the ability of free choice and without coercion” (article 14), and
then indicates that "the research on artificial fertilization will only be admissible when
applied to the solution of problems of sterility that cannot be solved in another way,
respecting the moral, cultural and social point of view of the couple” (article 44).
the consent is, then, one of the criteria that together with the genetic link has recognized
the legal order to determine the filiation. On this subject, this Chamber has indicated:

(...) At present, consent is strengthened with the help of a new principle that tends to be
more relevant every time, as advances in assisted reproduction evolve and become
popular. It is the principle of responsibility in procreation ... »(CSJ SC, 30 Nov. 2006,
Rad. 1998-00024-01).
In addition, further comments say:
From the previous exposition it is inferred that the national legal order, following the
international provisions on the subject, regulates the activity of reproductive biomedical
units demanding the provision of an informed consent both from the applicants of the
artificial insemination technique and from the donor in those cases in which the former
is heterologous, with respect to whom the possibility of keeping his identity in total
reserve is established.
That manifestation must comply with the requirements established in article 1502 of the
Civil Code, that is, that it comes from a legally capable person; agree to that act or
statement; that his consent does not suffer from any defect and that it falls on lawful
object and cause.
The will has legal relevance if it creates rights and legally enforceable obligations, for
which besides serious should be expressly stated or externalized in facts that
demonstrate, because while the will is an internal psychological act, it lacks any legal
significance. What gives it its creative force is its externalization and it is this external
manifestation that is called the declaration of the will.
This expression of the will aims to make possible the practice of insemination in women,
and that man assumes the paternity of the child born as a result of that procedure. The
main objective of consent is not only that the woman can be inseminated, but that once
the insemination has been successfully carried out, the parents must assume the legal
consequences of their new marital status.

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 Egg Donation
Egg donation is allowed in Colombia must be anonymous. No known egg donation is
possible. As outlined in Sentence T-968 of 2009 by the Constitutional Court:

In this regard, it is pertinent to point out that Decree 1546 of 1998, partially modified by
Decree 2493 of 2004, regulating the 9th Law of 1979 and 73 of 1988, regulated the
obtaining, donation, preservation, storage, transportation, destination and final disposal
of anatomical components, and in particular their transplantation and implantation in
humans, as well as the functioning of the so-called "Banks of Anatomical Components"
and of the "Reproductive Biomedicine Units". In said regulations, in article 2, the
heterologous donor is defined as "the anonymous or known person who provides their
gametes, so that they may be used on people other than their partner, for the purpose
of reproduction." From the foregoing it can be inferred, on the one hand, that in the
national legal system the aforementioned assisted human reproduction procedure is
recognized and that the entities in charge of providing said services are subject to state
regulation, and, on the other, that established the possibility of keeping the identity of
the gamete donor secret in heterologous artificial inseminations.

Same Sex Couples and Singles

Surrogacy for singles and same sex couples is possible in Colombia, and there is also a
method to represent 2 men or 2 women on the ensuing birth certificate.

Article 43 of the The National Constitution of Colombia (1991) states that women and
men have equal rights and opportunities before the law and cannot be subjected to any
type of discrimination.

This was recognized the Colombian Constitutional Court in a landmark decision in 2015 that
ruled that excluding same-sex parents as potential adopters was a limitation of the right
of children to have a family and not be separated from it.

In Article 273 of the Civil Code, it states ​“(…) The legitimate son of one of the spouses may be
adopted by the other,“ ​and is amended by Law 140 of 1960 to state​, “Adoption can take
place only between persons of the same sex, unless it is done by husband and wife.”

In addition, in parallel thinking, in sentence SU-214 of April 2016, the Constitutional Court ruled
that same-sex marriage was legalized and that all judges and notaries would be
heretofore obliged to perform that ceremony under the same conditions required for
heterosexual couples. Thus, same-sex couples have the same rights and obligations
as heterosexual couples or singles, including the right to procreate.

Surrogacy with anonymous eggs donation allows singles and same sex couples to realize this
goal.

Filiation

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 Filiation is the, "​legal bond that unites a child with his mother or father and that consists
of the relationship of kinship established by law between an ascendant and his
descendant of the first degree​" (CSJ SC, 12 Jan. 1976, GJT CLII, p.12). This
relationship, "​gives rise to a civil status, in itself" indivisible, unavailable and
imprescriptible​ " (CSJ SC, 26 Sep. 2005, Rad. 1999-0137).
The legal effects on marital status are the same for all relations of filiation, regardless of
the way in which they occur, or if they are marital or extramarital. This is recognized in
paragraph 6 of Article 42 of The National Constitution of Colombian (1991):
Although a woman who gives birth is considered the mother of the child in the Civil
Code, under the section on ​Disputed Maternity​, Article 335 on ​Appeal of Motherhood​, it
states that filiation, “​may be challenged proving false labor or child of the alleged
impersonation to true. They have the right to challenge.​ ”
This is accomplished through a DNA test after birth that shows no genetic relationship
to the surrogate mother and a genetic relationship to the intended father. A court
process is filed and accepted by the court and then your attorney can process this case.
In addition, in the Civil Code on ​Children's Rights Article 44, explicitly listed are protections
such as life, physical integrity, health and social security, their name and citizenship, to
have a family and not be separated from it, and care and love. Children are to be
protected against all forms of abandonment, etc.
Article 318 of the Civil Code points out that children born out of wedlock may be
recognized by their parents or by one of them and have the legal quality of natural
children.
Further, the judicial comments in case for the Supreme Court of Justice in the case of
“Challenge of Extramarital Paternity” of 2017 shows that:
Therefore, based on the Superior norm that establishes that children born into or out of
wedlock with scientific assistance have the same legal status as adopted and naturally
born children, filiation by means of artificial reproduction must be considered one more
modality of the situations protected by the presumption pater ist is foreseen in article
213 of the Civil Code.

Foreigners Rights

The National Constitution of Colombian (1991) in Chapter III on ​Foreigners​, Article 100 grants
foreigners in Colombia the same civil rights and guarantees as those granted to
citizens.

Conclusion

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In the end, surrogacy in Colombia is governed by various articles of The National Constitution,
various rulings from the Constitutional Court, and a post-birth filiation process using the
Civil Code.

Surrogacy must be gestational, not traditional (no genetic relationship to the surrogate mother),
clear consents must be in place, there must be a genetic link to the intended parent(s),
there can be no coercion, intended parent(s) in no way are allowed to decline
acceptance of the ensuing offspring, and the appropriate medical and psychological
testing must be in place.

Although the surrogate mother is always initially placed on the birth certificate, through a court
process including DNA evidence, this can be revised to acknowledge the true intended
parents including a man and a woman, or 2 men or 2 women. This process can take a
few months but intended parents(s) will also be afforded various documents whereby
the surrogate mother relinquishes rights and allows travel; these documents can be
notarized and apostilled to give flexibility and allow quicker travel home.

As the baby born through surrogacy initially has a Colombian represented on the birth
certificate, it allows for the acquisition of Colombian citizenship and passport as well.
This passport may afford intended parent(s) more flexibility and immediate travel home
as many countries, including the Schengen Zone, do not require a visa for Colombian
citizens to travel.

Fernan