The decision of the Constitutional Court fails
The role of the Constitutional Court in the country is also surprising, given that it has great trust in the public and in the academic and legal community, primarily because it has helped to guarantee rights and is vital in the way of consolidating a rule of The law.
However, through guardianship decisions related to “surrogacy” (a euphemism that seeks to obscure the true content of renting out, using and exploiting women’s bodies), it opens the door to a slippery slope that can put under issue assessment based on the human rights of women, girls and boys.
In addition, it may cause violations of the personal integrity of said people and antinomies of civil law, against the Constitution itself. This in an attempt to protect the “rights” (which are actually wishes) related to guaranteeing the reproduction of people who cannot conceive (sentence T-968 of 2009) or to grant maternity leave to the person who has paid to have access to a human being who has part of his genetic material (Sentence T – 275 of 2022).
Faced with this latest decision, the Constitutional Court insists, first of all, on the National Government, so that within six months it submits to the Congress of the Republic a bill aimed at regulating “surrogacy” and submits this request to the Congress of the Republic, to legislate on the matter. A decision made by the Constitutional Court based on an alleged legislative loophole that curiously seeks to protect the rights of those who exploit another human being.
In this way, the Constitutional Court orders the executive and the legislature to violate the constitutional block and the Constitution itself, Article 5 of which recognizes without any discrimination the primacy of the inalienable rights of the individual.
These types of decrees are meant to protect the most powerful, not women, who can end up being subjected to hard-target contracts and even disguised as donations.
In addition, it should be noted that there is no pregnancy without economic costs and that this will determine, during the period of pregnancy, the life and health of the woman. This window is even more dangerous given all the possibilities that can be hidden under a bond of friendship, affinity, and even commitment.
What can be done?
We are then faced with a situation created by lines of thought in which the effects surrogate wombs can have on instrumentalized women and girls and boys who are bought are of no interest.
This needs sensible analysis to protect human rights, not those of individuals, and to thoroughly discuss the human rights implications of treating women and children as objects of contract in its various modalities.
Furthermore, it is necessary to analyze, from a comparative law perspective, the positions of different states or communities of states regarding this practice in the context of social and economic inequality and in a society that makes women insecure because they are the poorest, racialized, excluded , those with fewer opportunities who are sought to sign this type of contract.
They are the ones who experience the consequences of selling their lives and health, limiting their actions in the face of decisions about their bodies and the decision to have an abortion.
Finally, it is necessary to reveal the instrumentalization of women by referring to them as a technique of assisted reproduction, the effects of abandoning, not accepting or returning girls and boys as marketable products because they are “defective” or because they do not meet the parameters of the agreed and numerous unethical and criminal consequences of what the treatment of human beings as objects in contractual relations causes.
We are facing a particular type of trafficking for the purpose of reproductive exploitation, which must be classified as such and punished. The interest of children and adolescents and the sexual and reproductive rights of women must prevail, not the civil law of goods and objects regulated by a vile contract for the sale of human beings.