Surrogacy is a practice that can be found in Panama despite the absence of a law in this country that regulates this reproductive method. Although many couples are looking for a surrogate mother there, it is not a recommended destination due to its legal limbo.
The only viable option for both nationals and foreign patients, whether heterosexual or gay couples, is to resort to adoption. This one does have an express regulation, although it is subject to a considerable number of restrictions that we will see below.
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Actual legal situation
The Republic of Panama does not have a specific law that regulates or prohibits surrogacy, so we can consider that there is a legal vacuum. Nor does it have specific regulations on assisted reproduction. This void means that many couples resort to this treatment even without legal certainty.
However, the Criminal Code, in Chapter II on Reproduction and Genetic Manipulation (Art. 145 to 147), provides that any of the following procedures shall be punishable by imprisonment of between 2 and 10 years:
- Fertilization of human eggs for purposes other than procreation.
- The practice of assisted reproduction in a woman without her prior consent.
- The use of genetic engineering to create identical human beings through cloning or another procedure of race selection.
- Manipulation of human genes for a purpose other than the elimination or reduction of a serious disease or birth defect.
In spite of the fact that these are the only provisions that the Panamanian legal framework contemplates in the matter of assisted human reproduction, in the country there are reproductive centers where it is possible to carry out in vitro fertilization (IVF) or PGD treatments, as well as to resort to a sperm bank or to the donation of eggs.
How is filiation established?
In Panama, the filiation of children with respect to the mother is not governed by the principle Mater semper certa est ("The mother is always known"), contrary to what happens in many other countries.
Currently the law No. 3 of 17 May 1994, approving the Family Code of Panama, defines filiation as follows in Art. 235:
Filiation is the relationship between the son or daughter and his or her parents. In relation to the mother, it is called motherhood. In relation to the father, it is called paternity.
Based on this definition, it states that it can take place either by consanguinity or by adoption. In both cases, the effects will be the same, that is to say, it considers all children, whether consanguineous or adoptive, equal before the law, so that they have the same rights and duties.
Also, and bearing in mind the above definition, it should be emphasized that Panamanian law defines maternity as the feminine part and paternity as the masculine part when having children.
Definition of 'maternity' and 'paternity
Chapter II of the Panamanian Family Code, which defines the concept of maternity and establishes the process carried out for its recognition, makes it clear that maternity shall be presumed for all legal purposes when the following facts are demonstrated:
- Childbirth
- The identity of the son or daughter
This would imply that the surrogate woman, in the event of carrying out a procedure of this nature, would be recognized in the first instance as the mother of the baby, given that she is the one who has given birth. There are two ways of challenging motherhood: either by proving the false birth or by proving that the supposed child has been replaced by the true one.
However, the law refers to the three profiles of persons who could claim or refute maternity, which include the child's own birth, the alleged father and mother, and the true parents of the child in order to confer their corresponding family rights.
As for paternity, understood as the part that corresponds to the father, there are three types of recognition: voluntary, legal and judicial. The first is done by the father himself in the act of marriage before the competent judge. In addition, he must have had children with the woman he is married to.
Surrogacy, like any medical treatment, requires you to trust the professionalism of the clinic and the agency.
Adoption requirements
As mentioned above, the Family Code of Panama recognizes the filiation of children both by consanguinity and by adoption. In Chapter I, the latter is described as a family legal institution created for a child who is not a child by blood.
Moreover, an advantage of adoption in Panama is that the same is recognized between people of the same sex, so gay couples can also be parents in this country if they wish to form a family. Persons under 18 years of age who are in one of the following situations may be adopted and automatically acquire Panamanian nationality by naturalization:
- Absence of father and mother
- Unknown parents (unknown filiation)
- Abandonment
- Even if they have one or both parents, if the parents give their consent
- Abuse
Adoptive parents may be those who are spouses and have a stable home. In addition, the age of each adopter may not exceed the age of the adoptee by more than 45 years. Individual adoptive parents who are married must provide the consent of their spouse in order to be able to continue with the adoption.
Adoption by foreigners
Adoption of Panamanian children by foreigners is possible, although it is subject to several requirements for non-domiciled foreigners that should not be overlooked. They must have been married for at least 5 years and meet the personal requirements established in the law of their country.
Additionally, it will be allowed only in those cases in which all possibilities of adoption at the local level have been exhausted and there must be international agreements, conventions, treaties or pacts between the country of origin and Panama.
Given the full legality and recognition in the law of the adoption of children in the absence of a law on surrogacy, the most advisable thing in any case would be to resort to adoption when it is not possible to have a child naturally.
We recommend read more about this in the following article: International adoption in the U.S. How does it work?
Fertility Tourism in Panama
In view of the above, we can conclude that Panama is not a good destination for foreigners seeking to become parents through surrogacy in another country. It is also not recommended as a destination for initiating other reproductive treatments, given the absence of an explicit legislation.
There is currently a minority who resort to surrogacy there despite the possible associated risks. For example, there have been cases of homosexual IPs from Florida (United States) who have chosen to have a child through a Panamanian surrogate for the following reasons:
- It is not necessary to adopt if one of the parents has contributed his gametes
- Lower cost of treatment: about 50,000 U.S. dollars less than in the U.S. (the price in Panama is around $39,000-85,000)
Although there are clinics in Panama where surrogacy processes are carried out, the absence of a legal framework that provides protection to families who decide to resort to this process means that this country does not appear as a possible reproductive tourism destination in Latin America.
FAQs from users
Where can I find a surrogate mother in Panama?
As we have commented throughout this article, surrogacy does not have a specific law in this country, so it is not approved, but neither prohibited, but rather there is a legal vacuum. Although the treatment is practiced, there are no official sources and no publicity can be found. In short, it is not recommended to start this treatment in the country, given the risks it would entail in legal terms.
Does Panamanian law permit the adoption of nephews or family members?
The law permits the adoption of a relative of second degree of affinity or fourth degree of consanguinity of either spouse, provided a judge approves that the conditions of the adopters are suitable for the adoptee. This means that it is possible to adopt grandchildren, siblings and brothers-in-law (second degree of affinity) and cousins (fourth degree of consanguinity).
Related: Choosing a family member as your surrogate.
Is there any other country in South or Central America where surrogacy is allowed?
In Brazil, it is allowed only between family members, while in Guatemala there is no express regulation that approves or prohibits it, so it is also practiced. In Argentina there is a draft law, but it has not yet been approved.
What would cost me a IVF alone when hiring a surrogate in Panama?
The cost of conventional IVF in Panama is around $7,000-12,000, although the most advisable thing is to ask and get advice in the different clinics and hospitals existing in the country. However, to this price you must add the financial compensation to the surrogate mother, the costs of medication and pregnancy monitoring, egg donation, legal advice, etc.
For an overview on what's included and what not, have a look at: Surrogacy Cost Breakdown.
Suggested for you
Are you looking for a safe surrogacy destination to be a parent? There are other countries where, depending on the type of family, it can be carried out with legal guarantees. We recommend that you take a look at this guide to find out more: Surrogacy by country: Where is it allowed?
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References
CRIMINAL CODE OF THE REPUBLIK OF PANAMA.. (Link)
Law No. 3 from May 17th, 1994, approving the Familiy Code of Panama (in Spanish) (Link)
FAQs from users: 'Where can I find a surrogate mother in Panama?', 'Does Panamanian law permit the adoption of nephews or family members?', 'Is there any other country in South or Central America where surrogacy is allowed?' and 'What would cost me a IVF alone when hiring a surrogate in Panama?'.
