1. GENERAL LEGAL FRAMEWORK

It was not until the second decade of the twenty-first century that reproduction by surrogacy was named for the first time – although blurred and incomplete – in the formal legal system of Puerto Rico. On 1 June 2020, four articles were incorporated into the Civil Code that recognise what was called “surrogate maternity”, limited to gestational surrogacy. On 17 June 2021, the Supreme Court issued an opinion that recognised the right of the intended mother to register, through a voluntary recognition, the child born from a gestational surrogacy arrangement. However, it clearly indicated that this right is only valid when “the surrogate is not genetically linked to the child”.

Having said this, reproduction by surrogacy has been practiced in Puerto Rico since long before its legal recognition, but has suffered from the swings between the liberal sectors and fundamentalist conservatives occupying the legislative branch. The pressure groups involved in the debates about reproduction by surrogacy, and other rights, such as those included in the proposed revisions of the Civil Code of Puerto Rico, discussed in 2007, include religious groups, human rights defenders and, at a secondary level, certain government agencies, the media, lawyers and academics. Once again, the organisations that promote reproductive freedom, and those who offer the services necessary to make it a reality, became active. Participants in the public and legislative debates included several doctors, the American Society for Reproductive Medicine, the Sociedad para la Tecnología de la Asistencia Reproductiva, the Civil Rights Commission of Puerto Rico, and the non-governmental organisation Profamilias Puerto Rico, as well as lawyers, academics and law students. The mobilisation of these sectors against the criminalisation of surrogacy and other assisted reproduction practices managed to prevent the approval of the proposed measure, and the legislative commission that studied it issued a negative report. While this debate raged on, the practice of surrogacy continued in the shadows, without legal recognition, but tolerated and practised in the clinics providing the service. The proposed 2007 reform of the Civil Code was defeated, and did not even become a bill.