Guatemala and Its Legal Limbo in Surrogacy

Guatemala has neither a general law on assisted reproduction techniques nor a regulation for surrogacy, the latter socially understood as the process of "renting" a woman to introduce into her womb the embryo of another person or couple for the sole purpose of using her womb for gestation.

Due to the total absence of a legal system regulating surrogacy in Guatemala and taking into account that it is not a legally prohibited practice, there is a great vulnerability of the parties involved in this process.

Legal limbo in Surrogacy

As established by law, in Guatemala the mother is considered to be the woman who gives birth to the child, and if she is married, paternity is awarded directly to her husband.

For this reason, the Civil Code admits that the parents are the surrogate and her husband and not the intended parents.

Mother is the woman who gives birth

Law Fraud

Although there is no evidence but it is an open secret, what happens in Guatemala is that the surrogate and the intended parents verbally agree that after the birth of the baby, naturally conceived and not through assisted reproduction techniques, it will be registered in the name of the intended parents.

This way of acting is considered a crime. However, there is no way to identify these cases of fraud that violate the law, since there is no rigorous and effective control of the registration of newborns. For this reason, it is necessary for Guatemala to improve control in hospitals to prevent newborns from being registered by those who are not their biological parents.

In this type of case, the surrogate is usually already pregnant when she seeks or initiates the process in agreement with the IPs, who will have to pay for the expenses derived from pregnancy and childbirth.

Legal vacuum in Guatemala

Prohibition of direct adoption

Another thing that happened in Guatemala is that the intended parents could adopt the baby after the delivery by the surrogate mother and her husband. Until the approval of Decree 77/2007, adoption procedures in Guatemala did not demand special requirements and were carried out by a notary public without special control by the State.

However, with the enactment of this decree 77/2007, direct adoption is prohibited. The ultimate objective of this regulation is to ensure the best interests of the child and to guarantee transparency in the adoption process.

In accordance with this new regulation, the surrogate mother cannot give the baby in favor of the parents of intention nor specifically estimate who will adopt her baby. However, although to a lesser extent than before the approval of Law 77/2007, there are still cases of irregular adoption.

Providing the genetic load

Another of the ways in which intended parents get the paternity of the baby is by providing the genetic material.

If it is the intended father who causes the pregnancy in the surrogate (either by artificial insemination or naturally), once the baby is born, the intended father can claim paternity based on the genetic burden of the baby. After the approval of the paternity, the intended mother will be able to carry out the adoption as established in the Decree 77/2007.

It should be emphasized that this is not a safe way to proceed, but is due to the legal vacuum surrounding surrogacy.

On the other hand, there is also the option of transferring an embryo generated with eggs and sperm from the future parents.

In spite of the above mentioned, surrogacy as such may be criminalized by the law against sexual harassment, exploitation and human trafficking, which regulates numerous offences with the aim of protecting minors from acts of exploitation such as the fact that a woman makes a profit (economic or otherwise) by delivering the baby to another person.

Suggested for you

As stated throughout this article, Guatemala is not a safe destination for a surrogacy process. It is best to be well informed of the countries where there is a law on this subject. You can read more about this here: Surrogacy Laws by Country- Where Is It Legal?

You can also get detailed information about the steps of the process in the following article: Guide to the Surrogacy Process- The 7 Steps of Surrogacy